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Books on the topic 'Contract formation'

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Published: 4 June 2021
Last updated: 26 January 2023

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1

Contract formation and parties. Oxford: Oxford University Press, 2010.

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2

Omoregie, Edoba B. Law of contract in Nigeria: Formation of contract. Akure: Sylva Pub., 2000.

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3

Enterprises, RIBA, ed. Focus on construction: Contract formation. London: RIBA Enterprises, 2003.

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4

Lieberman, Richard D. Elements of contract formation: Practical advice on winning government contracts. Chicago: CCH Inc., 2000.

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5

Furmston, M. P. Contract formation and letters of intent. Chichester, West Sussex, England: J. Wiley, 1998.

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6

Kazeem, Musendiq Adeniji. Electronic contract formation and the Nigerian initiatives. [Nigeria]: [s.n.], 2005.

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7

Coote, Brian. Contract as assumption II: Formation, performance, and enforcement. Portland, OR: Hart Publishing, 2016.

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8

Goldhaber-Fiebert, Jeremy D. Committing to exercise: Contract design for virtuous habit formation. Cambridge, MA: National Bureau of Economic Research, 2010.

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9

Libertés et libéralismes: Formation et circulation des concepts. Lyon: ENS éditions, 2012.

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10

Owsia, Parviz. Formation of contract: A comparative study under English, French, Islamic, and Iranian law. London: Graham & Trotman, 1994.

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11

Commission, Scottish Law. Report on formation of contract: Scottish law and the United Nations Convention on contracts for the international sale of goods. Edinburgh: HMSO, 1993.

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12

Formation and termination of employment contracts in Tanzania: Under the Employment and Labour Relations & Labour Institutions Acts. Dar es Salaam: Chem-Chem Publishers, 2013.

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13

He tong you xiao cheng li bi jiao yan jiu: A comparative study on valid formation of contract. [Changsha Shi]: Hunan jiao yu chu ban she, 2000.

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14

Michael, Furmston, and Tolhurst Gregory. Contract Formation. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198724032.001.0001.

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This text provides a scholarly and practical analysis of the legal principles which govern the formation of contracts in English law, offering those involved in litigation and in drafting contracts a guide to the application of those principles in practice. The book reviews all the classical rules governing contract formation with extensive coverage of difficult areas such as certainty, conditional contracts, good faith negotiations, auctions, tenders, on-line contracting and the assessment of conduct and silence in contract formation. It also discusses the efficacy, problems and rules around modern contracting, in particular the use of heads of agreement, letters of intent, letters of comfort and the methods of resolving a battle of the forms. In this second edition a chapter has been added on consideration and estoppel. Although this work is based on English law, the text draws upon decisions in other jurisdictions such as Australia, Canada, the United States, Singapore and New Zealand, where these inform the development of principles in English law.
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15

Garrett, Gregory A., and William Pursch. Contract Formation (Actionpack). Berrett-Koehler Publishers, Incorporated, 2018.

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16

Stephan, Kinsella N., and Simpson Andrew F. 1969-, eds. Online contract formation. Dobbs Ferry, N.Y: Oceana Publications, 2004.

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17

Han, Tan Cheng. Contract Formation in Singapore. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0008.

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The Singapore law on contract formation largely replicates the English law which it inherited and is covered by the Application of English Law Act 1993 ‘so far as it is applicable to the circumstances of Singapore and its inhabitants and subject to such modifications as those circumstances may require’. The offer and acceptance approach to contract formation is mediated through the objective test of intention taking account of the circumstances in which the words or conduct are to be interpreted; but if one party’s mistaken expression is known to the other, there is no valid contract. Where such an analysis is difficult, the courts may imply contracts or perfect contracts if the parties’ intention to contract is clear. Offers are distinguished from ‘invitations to treat’ since the former evince an intention to be bound by acceptance, while the latter do not. Offers can be revoked at any time before acceptance and, in the absence of consideration, even before the expiry of the time for which the offers are stated to be open.
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18

Yamashita, Yoshikazu. Formation of Contract in Japan. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0012.

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This chapter provides insights into the law on contract formation in Japan. The Japanese approach is traditional, requiring an agreement which, in turn, normally requires an offer and matching acceptance, according to the mirror image rule. Once offers become effective, the 1898 Japanese Civil Code severely restricts their revocability. This is in tune with the mostly German origins of Japanese contract law. However, the drafters of the Code deliberately followed the common law in one respect: the offeree’s acceptance becomes effective as soon as it is dispatched. This is highly controversial and in 2001 was abolished for acceptances by electronic means. Ongoing major reform of Japanese contract law will probably extend this solution to all contracts. Japanese law has no doctrine of consideration and has traditionally eschewed formal requirements as a prerequisite for the validity or enforceability of contracts. More recently, formalities have been introduced, first, for certain consumer contracts, then for contracts of suretyship. A particular feature of Japanese law pertaining to contract formation is the strong duty to negotiate in good faith.
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19

Ying-Chieh, WU. Contract Formation in Taiwan. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0015.

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This chapter examines the rules of offer and acceptance in the formation of contract in Taiwan law. An offer is binding unless: the offer states otherwise, the revocation reaches the offeree before or at the same time as the offer, or if the offeree does not respond within a reasonable time. An acceptance only becomes effective when it reaches the offeror. The postal rule does not apply, but if the postal acceptance is delayed for reasons not attributable to the offeree, the offeror who knows of the delay must inform the offeree of it, otherwise the offeror will be bound at the time that the acceptance would normally have arrived. In a ‘battle of forms’ situation there is no binding contract if the different terms are core to the contract. Silence may amount to acceptance if communication of acceptance is waived by the offeror or by custom, or acceptance by conduct is inferred. There is no general requirement of form for a valid contract, but exceptionally, formalities are necessary.
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20

Oranburg, Seth. Oranburg's Contracts Law Workbook : Part One: Contract Formation. Independently Published, 2018.

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21

Chunyan, Ding. Contract Formation under Chinese Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0002.

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This chapter discusses the law on contract formation in Chinese law which largely follows the UN Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts. An objective approach is adopted in determining the parties’ intentions but exceptions are allowed where parties have not accurately expressed their true agreement, the contract is a sham, or one party’s intentional false expression is known to the other. For a contract to be binding, its ‘essential elements’ must be agreed (names of the parties, subject matter, and quantity); other terms may be agreed by the parties after the conclusion of the contract or, failing that, determination by the court. In reality, however, courts use soft laws and the nature of the contract, to augment what is required. A purported acceptance which makes a ‘non-material’ alteration to the content of the offer can bind the offeror unless the offeror timely rejects it, but there is little scope for non-materiality. Nevertheless, even a materially varied acceptance can bind if the original offeror’s performance amounts to acceptance where the usage of transaction or the express terms of the offer allows acceptance by conduct. Furthermore, courts show willingness to recognize an acceptance by conduct of performance beyond these two situations. There is no general requirement of form for a valid contract, although exceptionally, laws or administrative regulations may require writing or approval/registration. There is no general requirement of consideration; gratuitous contracts are enforceable. However, the latter attract far less legal force than onerous contracts. An offer is irrevocable only if it is an option or if the offeree reasonably believes the offer is irrevocable and has made preparations for the performance of the contract. An acceptance takes effect only when it arrives. A late acceptance that is not attributed to the offeree is ineffective unless the offeror gives timely notice of its intention to ratify the acceptance. Electronic means of communication are treated in the same way as paper-based communications with specific rules to determine the time and place of contract formation and the validity of electronic signature. Reliance-based pre-contractual liability may be imposed, on the basis of the requirement of good faith, in the circumstances including negotiating with no intention of concluding a contract, intentional concealment of material facts, or breach of confidentiality.
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22

Ingeborg, Schwenzer, Hachem Pascal, and Kee Christopher. Part III Formation of The Contract, 9 General Remarks on Contract Formation. Oxford University Press, 2012. http://dx.doi.org/10.1093/law/9780199572984.003.0009.

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23

Contract Formation: Law and Practice. Oxford University Press, USA, 2009.

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24

Davidson, Charles Kemp, and Great Britain. Report on Formation of Contract. Stationery Office Books, 1993.

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25

HO, Lusina. Contract Formation in Hong Kong. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0010.

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This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.
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26

Furmston, Michael, and Gregory Tolhurst. Contract Formation: Law and Practice. Oxford University Press, 2016.

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27

OWSIA, P. Formation of Contract A Comparative Stud. Kluwer Academic Publishers, 1994.

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28

Schane, Sanford. Contract Formation as a Speech Act. Oxford University Press, 2012. http://dx.doi.org/10.1093/oxfordhb/9780199572120.013.0008.

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29

Ingeborg, Schwenzer, Hachem Pascal, and Kee Christopher. Part III Formation of The Contract, 14 Modification of Contract. Oxford University Press, 2012. http://dx.doi.org/10.1093/law/9780199572984.003.0014.

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30

Office, Stationery, and Scottish Law Commission Scotland. Review of contract Law: Discussion paper on formation of Contract. Rowman & Littlefield Publishers, Incorporated, 2012.

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31

Oranburg, Seth. Oranburg's Contract Law Workbook Teacher's Manual : Part One: Contract Formation. Independently Published, 2018.

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32

Nuggehalli, Nigam. Contract Formation in India: Law and Practice. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0004.

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This chapter examines the law on the formation of contracts in India. The Indian Contract Act 1872 is significant as it is the first successful attempt to codify the English common law of contract in the British Commonwealth. The Act was then transplanted to other jurisdictions in the British Commonwealth. The preamble of the Act makes it clear that it is intended to ‘define and amend certain parts of the law relating to contract’; therefore the Act does not exhaustively set out the rules of contract law. Interesting issues follow relating to the precise ambit of the Act, and the areas where there continues to be room for common law development, whether novel and unique to India, or adopted into Indian law after considering the common law developments in other jurisdictions. One issue relates to the postal acceptance rule which does not state that it is an exception to the instantaneous communication rule. Another issue relates to whether the Act permits the accommodation of a subsequent development in the English common law.
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33

Matthews, Mark R. Article 2 - Sales Contract Formation: 2017 Edition. Independently Published, 2017.

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34

Bell, Gary F. Formation of Contract and Stipulations for Third Parties in Indonesia. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0018.

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Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.
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35

Office, Stationery, Lynda Clark, and Scottish Law Commission Scotland. Review of Contract Law: Report on Formation of Contract, Execution in Counterpart. Stationery Office, The, 2013.

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36

Patrick, Butler. Key Case Law Rules for Government Contract Formation. Berrett-Koehler Publishers, Incorporated, 2014.

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37

Coote, Brian, and Carter John. Contract As Assumption II: Formation, Performance and Enforcement. Bloomsbury Publishing Plc, 2018.

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38

Patrick, Butler. Key Case Law Rules for Government Contract Formation. Berrett-Koehler Publishers, Incorporated, 2014.

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39

Youngjoon, Kwon. Contract Formation and Third Party Beneficiaries in Korea. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0014.

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This chapter 14 discusses the rules on contract formation and third party beneficiaries in Korea. These can be found in the Korean Civil Code of 1960 that is closely modelled on the Japanese Civil Code, therefore many of its solutions can be ultimately traced back to German law. For a binding contract to be made, Korean law only requires an agreement which is normally constituted by an offer and a matching acceptance; there is no requirement of consideration, and as a general rule there is freedom of form—only limited statutory exceptions impose formal requirements for specific types of contract. Offers must be sufficient and sufficiently definite, and they must be made with the intention to be legally bound. They become effective once they reach the offeree. After that they are, in principle, irrevocable—a position only slightly softened by a 2014 Ministry of Justice draft amendment. The draft also suggests abolishing the common law-style ‘mailbox rule’ that the Code inherited from the Japanese Civil Code.
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40

Tayseng, Ly. Formation of Contract and Third Parties in Cambodia. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0017.

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This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.
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41

Ingeborg, Schwenzer, Hachem Pascal, and Kee Christopher. Part III Formation of The Contract, 13 Agency. Oxford University Press, 2012. http://dx.doi.org/10.1093/law/9780199572984.003.0013.

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42

Emir, Astra. 3. The Formation of a Contract of Employment. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198814849.003.0003.

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This chapter discusses how an employment contract is formed, and it then looks at the terms and conditions of employment and how these terms are to be interpreted. The types of terms discussed include express terms, implied terms, statutory terms, collective agreements and how such collective terms are incorporated, and looks at custom as a source of employment terms and works and staff rules. The chapter also considers other aspects of the contract of employment such as disciplinary and grievance procedures, job descriptions, written particulars of the contract of employment, the right to itemised pay statements, variation of contractual terms, and occupational pension schemes.
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43

Patrick, Butler. Key Case Law Rules for Government Contract Formation. Berrett-Koehler Publishers, Incorporated, 2018.

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44

Ross G, Anderson. Ch.2 Formation and authority of agents, Formation II: Arts 2.1.6–2.1.14—Acceptance, Art.2.1.14. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0030.

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This commentary focuses on Article 2.1.14 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning contracts with terms deliberately left open. Art 2.1.14 permits the contract to have effect notwithstanding the fact that particular terms have been left open for future agreement. If the parties intend to conclude a contract, the fact that they intentionally leave a term to be agreed upon in further negotiations or to be determined by a third person does not prevent a contract from coming into existence. This commentary discusses present intention to be bound despite open terms, resolving disputes on open terms, and burden of proof relating to disputes over the existence of a contract despite open terms.
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45

Net, Le. Contract Formation and Contracts for the Benefit of a Third Party in Vietnam. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0021.

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This chapter examines the recent changes to the Vietnamese Civil Code and its impact on contract formation and third party beneficiaries. Since the enactment of the first modern civil code in 1995, major revisions have been made every ten years with the 2015 Code repealing more than 50 per cent of the 2005 Code; representing more than 300 articles of the 2005 Code. Concepts like apparent authority were only recognized in 2005, while the notion of an offer to the world (rather than to specific parties) was only recognized in 2015. The 2015 Code was a product of the move from a planned economy to a socialist-oriented free market economy. The challenge of the Code was to address state interest and regulatory concerns to modify the norms of contractual freedom found in the Code.
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46

Ross G, Anderson. Ch.2 Formation and authority of agents, Formation II: Arts 2.1.6–2.1.14—Acceptance, Art.2.1.13. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0029.

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This commentary focuses on Article 2.1.13 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the conclusion of a contract. Art 2.1.13 deals with two separate aspects of formation during pre-contractual negotiations: agreement on specific matters of content, and agreement is concluded only if the agreement is concluded in a specific form. Where in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a particular form, no contract is concluded before agreement is reached on those matters or in that form. This commentary compares conditional contracts and fundamental prerequisites and concludes with a discussion of particular formalities relating to the conclusion of a contract.
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47

Chen-Wishart, Mindy, Alexander Loke, and Stefan Vogenauer, eds. Formation and Third Party Beneficiaries. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.001.0001.

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Studies in the Contract Laws of Asia provides an authoritative account of the contract law regimes of selected Asian jurisdictions, including the major centres of commerce where limited critical commentaries have been published in the English language. Each volume in the series aims to offer an insider’s perspective into specific areas of contract law—remedies, formation, parties, contents, vitiating factors, change of circumstances, illegality, and public policy—and explores how these diverse jurisdictions address common problems encountered in contractual disputes. A concluding chapter draws out the convergences and divergences, and other themes. All the Asian jurisdictions examined have inherited or adopted the common law or civil law models of European legal systems. Scholars of legal transplant will find a mine of information on how received law has developed after the initial adaptation and transplant process, including the influences affecting and mechanisms of these developments. The many points of convergence and divergence (in both form and in substance) emerge. These provide good starting points for regional harmonization projects. Volume II of this series deals with contract formation and contracts for the benefit of third parties in the laws of China, India, Japan, Korea, Taiwan, Singapore, Malaysia, Hong Kong, Korea, Vietnam, Cambodia, Thailand, Myanmar, and Indonesia. Typically, each jurisdiction is covered in two chapters; the first deals with contract formation, while the second deals with contracts for the benefit of third parties.
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48

Briggs, Adrian, and Andrew Burrows. Formation and Third Party Rights in the Myanmar Law of Contract. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0022.

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This chapter discusses the Myanmar law on contract formation and third party beneficiaries. The Myanmar law of contract largely comprises the Myanmar Contract Act 1872, which is identical to the Indian Contract Act 1872 subject to some factual changes in the illustrations). It was drafted by English lawyers and appears to be a statutory codification of the English common law of contract. In addition, section 13(3) of the Burma Laws Act 1898 allows courts to fill gaps in the written laws by the application of the principles of justice, equity, and good conscience. The first requirement for a contract is a proposal which may be revoked at any time prior to its acceptance. Second, there must be acceptance of the proposal, either by expression of agreement (the postal acceptance rule applies unless otherwise specified) or by performance. Third, consideration is necessary to convert an agreement into an enforceable contract if the parties are competent and the agreement is lawful. Myanmar law does not adopt the view that only the parties can enforce a contract—third parties are free to enforce contracts made for their benefit.
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49

Luke, Nottage. Ch.2 Formation and authority of agents, Formation I: Arts 2.1.1–2.1.5—Offer, Art.2.1.1. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0017.

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This commentary focuses on Article 2.1.1, which stipulates that a contract may be concluded either by acceptance of an offer or by conduct of the parties that is sufficient to show agreement. This provision reflects the neoclassical approach of the UNIDROIT Principles of International Commercial Contracts (PICC) to contract law, maximizing the parties' freedom to negotiate until they agree to contract on certain terms, by expressly mentioning that one means of concluding a contract is by conduct of the parties that is ‘sufficient’ (that is, definite enough) to ‘show agreement’. Art 2.1.1 broke new ground among transnational contract instruments in providing expressly for contract formation to be evidenced simply through conduct sufficient to show agreement. It also stresses the burden of proof necessary in contract formation.
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50

Ross G, Anderson. Ch.2 Formation and authority of agents, Formation II: Arts 2.1.6–2.1.14—Acceptance, Art.2.1.12. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198702627.003.0028.

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This commentary focuses on Article 2.1.12 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning written confirmations. Art 2.1.12 stipulates that if a writing which is sent within a reasonable time after the conclusion of the contract and which purports to be a confirmation of the contract contains additional or different terms, such terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy. This commentary discusses silence as acceptance of new terms, issues arising from incorporation of a choice of law or arbitration clause into the contract, consequences of failure to object to the written confirmation, and burden of proof of the party invoking the terms of the contract as stated in the confirmation.
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