Week 4:3 - Thinking Critically in Contract Law

Summary

In this session, Craig Newbery-Jones delves into the importance of critical thinking in contract law, focusing primarily on the "Battle of the Forms". The lecture highlights how historical and contemporary cases have shaped the legal landscape, particularly the evolution and challenges against the traditional 'last shot' rule. Newbery-Jones prompts students to question whether this rule fits modern contractual needs, stressing the role of intention in contracting and the law's adaptability to societal changes. This critical examination sets the stage for future topics like consideration and part payment of debt.

Highlights

• Critical thinking is pivotal in all areas of law, especially contract law. 🧐
• The 'last shot' rule is central but not absolute in 'Battle of the Forms' cases. 🎯
• Case law shows a softening towards flexible contracting principles. 🏛️
• Judges play a key role in evolving laws by testing and challenging old norms. 🔍
• Future topics on consideration will focus heavily on critique and evolution. 📚

Key Takeaways

• Understanding the 'Battle of the Forms' is crucial to modern contract law. 🧠
• The 'last shot' rule, though traditional, may not fit contemporary needs. ⚖️
• Judges often challenge old rules to fit new contexts, showing law's evolution. 🔄
• Intention in contract terms is vital beyond just acceptance and offers. 📝
• Being critical allows future lawyers to ask important questions about established laws. 🤔

Overview

In this segment, Craig Newbery-Jones takes us on a deep dive into the 'Battle of the Forms', a paramount aspect of contract law that shows the need for critical evaluation. The discussion sets out to demonstrate how historical rules, especially the 'last shot' rule, have either stood the test of time or called for modernization due to their rigidity. Expect a lot of questioning surrounding whether traditional rules align with the intentions and realities of modern-day contracting.

The transformation within contract law is notably seen through case law evolution, with judges being the vanguard of change. Newbery-Jones presents a fascinating look into how judicial insights and decisions reflect a broader societal need for adaptive laws. The 'last shot' rule’s challenges showcase the law's potential for change while maintaining stability—but Craig insists this potential must be continually critiqued.

Leading into future discussions, themes of intention, consideration, and evolving contractual norms take center stage. Newbery-Jones primes us to investigate not just the 'what' of contract law, but the 'why'—encouraging an academic inquiry into whether the law as it stands today serves its intended purpose and societal function. Expect a rigorous analysis of foundational principles as the course progresses.

Chapters

• 00:00 - 00:30: Introduction to Critical Thinking in Contract Law This chapter introduces the concept of critical thinking within the context of contract law. It likely covers key principles, foundational ideas, and the importance of critical analysis in understanding and interpreting contracts effectively. Additionally, it might provide insights into analytical skills necessary for dissecting legal texts and applying theoretical concepts to practical scenarios in contract law.
• 00:30 - 06:00: Battle of the Forms The chapter "Battle of the Forms" introduces students to critical thinking in the context of contract law. It emphasizes the importance of becoming a critical thinker, particularly in legal studies. The focus of the chapter is on developing critical analysis skills, especially when dealing with contract law, as this is essential for legal studies. The chapter sets the stage for learning to think critically, which will be a recurring theme throughout the law degree.
• 06:00 - 14:00: Challenges to the Last Shot Rule The chapter "Challenges to the Last Shot Rule" explores the complexities within contract law, specifically using the Battle of the Forms as a focal point. The transcript mentions that the reader has been reviewing various materials on this topic, signaling its importance in understanding legal principles. The section builds on previous lessons, referencing foundational cases such as Rogon Metropolitan Railway and Hyde & Wrench. These cases embody initial principles, but the 'last shot' rule is emphasized as a recurring theme in subsequent cases, implying how initial contractual agreements can be modified by later communications and actions.
• 14:00 - 18:00: Judicial Interpretation and the Evolution of Law The chapter titled 'Judicial Interpretation and the Evolution of Law' discusses how legal rules are subject to challenges in courts. Although not all challenges are accepted, they lead to a gradual evolution of the law. This evolutionary process characterizes the common law system, which adapts in response to changes in the world, including socioeconomic factors, as demonstrated by examples examined in previous weeks.
• 18:00 - 25:00: Looking Ahead: Consideration and Contractual Critiques The chapter titled 'Looking Ahead: Consideration and Contractual Critiques' delves into how the digital age and modern contracting methods influence the evolution of contract law. The discussion highlights the necessity for law to adapt in order to remain relevant and functional in a continually changing societal context. It reflects on the history and development of contract law, referencing foundational cases such as Hyde v. Wrench and Brogden. The chapter underlines this evolution as a critical opportunity to reassess and critique current contractual norms to ensure they support the modern world effectively.

Week 4:3 - Thinking Critically in Contract Law Transcription

• 00:00 - 00:30 [Music] [Music]
• 00:30 - 01:00 hello so this is an opportunity for us to start to think critically about contract law and during the course of your degree you will think critically in most of your subjects if not all of them and you will learn to think to to think critically to become a critical thinker just generally but especially about the law so here we're going to obviously focus on contract law so I'd like to take this opportunity here as you've
• 01:00 - 01:30 just looked through quite a lot of materials on Battle of the forms and this is a really good example for us to really start to think critically about an area of contract law so what you covered in the previous section you will have seen there are a number of cases we start off with some nice principles so rogon Metropolitan Railway and hide and wrench which after that which follows a number of cases where those principles that last shot
• 01:30 - 02:00 rule is being challenged in the courts now not all of those challenges are accepted wholesale but what you will see is a gentle Evolution there of the law and that's what happens in the common law because it is the common law it is responsive to changes in the world around us so socioeconomic factors for example can have a huge impact in the examples we've looked at in the previous week for um looking at
• 02:00 - 02:30 the digital age and the modern methods or more modern methods of Contracting those are things that will shape the law as we move through time because the law has to change to keep up with those changes in society and if it doesn't then it becomes out of date and it becomes useless to the world that we're living in so it's really a good opportunity for us to look at an area of contract law that has tried to develop and if you look at it we started off with those two key cases hide and wrench and brogen a
• 02:30 - 03:00 metropolitan Railway that actually lead us to the creation of the L short rule in the battle of the forms now don't be confused by it the last shot approach or the last shot rule is still King it is the general principle when we are looking at situations where there is a battle of the forms but you will also have seen through a number of the cases that came after that that those principles have been challenged ched
• 03:00 - 03:30 starting with Lord Denning in Butler a machine tool and there's a number of other cases so Tren and arol luxer Tech data RTS flexible systems following on to the case that you will have looked at in mang's podcast TRW and Panasonic although on a slight looking at it from a slightly different angle that's the parties trying to maneuver their way around the lar short rule so what you can see from that these evolution of cases is judges trying to challenge the
• 03:30 - 04:00 L shot Rule and not all of those challenges were successful but actually if you think about the evolution of those cases what's actually happened over time the L shot rule is not a hard and fast Rule now there has been some softening of it towards a more flexible a slightly more subjective approach to the battle of the forms and so this is a chance for us to think critically about why that might be for example and
• 04:00 - 04:30 whether that is what the court should be doing or whether if that's the way the law should be evolving over what is actually quite a long period of time so those comments through those through thosea through those decisions and those cases some of them dissenting and not all of them part of the rashio desend of those cases some of them obiter but those comments allow us to have an insight into the minds of the judges but also for us to really think about about what the principles are that
• 04:30 - 05:00 we are being asked to apply in in in everyday Contracting where Battle of the forms is concerned so the traditional Battle of the forms approach the last shot rule is a very traditional offer and acceptance transactional analysis of what is happening between the parties and it doesn't always give rise to the contract that the parties's expected and that is why we might say that the last shot rule
• 05:00 - 05:30 actually can lead to Injustice and it doesn't give effect to what the parties continually argue that they are trying to do what they are really trying to do is to uphold contracts but is it right that some of those contracts might not actually be the contracts that those parties intended to make and that's not to say that we should be going with a wholly subjective approach towards Contracting that would lead to Absolute chaos you can't ask parties well what did you mean what were you thinking and
• 05:30 - 06:00 just go with what they say that would lead to Absolute Anarchy in the legal system in in respect of Contracting but actually a softening of the rule away from a really hard and inflexible transactional analysis of offer and acceptance is that actually a bad thing and those are critical questions that we should ask we should be asking what should the law be does that transactional analysis the last shot approach fit the modern day does it
• 06:00 - 06:30 fit what contract law is actually trying to achieve so starting with Lord Denning and later on law Justice pill it they they're recognizing that the law cannot always be fully objective contract law does take the objective approach it does when it's looking at at what the parties intended it's it sits there as the reasonable person contract law purists amongst you might argue that h
• 06:30 - 07:00 hide and wrench and bogged in a metrop metropolitan Railway that they work to give us together to give us um an offer counter offer counter offer counter offer acceptance by conduct and that that is the way it should be that transactional approach and that doesn't mean that that approach is wrong or that any of those views are wrong but that is only one way of potentially assessing what the law should be and what the question we need to ask is why should it be that way and is that that the right
• 07:00 - 07:30 way for it to be in the context in which we live now and as we as I just said that form of transactional um approach to battle of the forms can be open to some abuse so what Lord Denning looked at was combin was he thought about the combined shot approach the first shot approach looking at where the terms of those standard forms were similar or or even partly replicated across two standard forms to see if the contract could
• 07:30 - 08:00 survive looking at it from a completely different way than what than what had gone before and perhaps trying to push the court into an area which it doesn't want to be and that actually comes across in some of the judgments some there are several judges who have have railed against that kind of approach or even a softening of that traditional larot L shot L shot rule approach and perhaps in the 19th century that was the right way to analyze these
• 08:00 - 08:30 Battle of the form situations it's a whole different world of Contracting that we are living in now it's multinational there are massive power imbalances between Contracting parties we have huge multilateral contracts and we also have new interventions in modern contract law via Parliament so it's really about questioning whether that last shot rule is the right rule for us to be for us to be using in every case
• 08:30 - 09:00 or in most cases in the modern world and I think the answer that we come to is no because you can see from the evolution of the case law itself that there has been a softening of that of that um that hard that inflexible approach approach and the other reason I wanted to talk about this is because those Cas cases give us a really good insight into how the courts work it allows us to see the court courts the judges sometimes
• 09:00 - 09:30 just individual judges doing what judges do which is looking at things from different angles and testing them pushing those boundaries testing to see if that law that has been established for however many years is still good law whether it's still the right law for the day in which whatever decision is being made and it shows us that the law is capable of being critiqued judges do that in lots of decisions they don't
• 09:30 - 10:00 just go in and just apply the rules that have always been applied there are areas in contract law there are areas across every um every type of law whether you're looking at crime whether you're looking at land law where judges will test the law and interpret the law so it's a really good insight into what judges do they don't just apply the rules and come to a decision based upon the rules that have always been they test those rules in new situations and they test those rules by perhaps molding
• 10:00 - 10:30 them in different ways to see what the outcome might be and whether that might be a better fit for for the for the case at hand but for the for the modern day and it asks us it also allows us to really build on that critique and especially those questions about whether something that is established law is actually good law and those are questions that we must ask as continually as we work through our careers being lawyers next week we're
• 10:30 - 11:00 going to start looking at consideration and then we'll move on to part payment of debt and those are both areas of contract law which are highly critiqued probably more so than Battle of the forms or any of the other things that we've looked at so far on the course there is severe criticism of many of the principles that are surround those areas particularly around part payment of debt and so we'll be looking at those and how the courts have dealt with those issues that have arisen
• 11:00 - 11:30 so it's one thing to understand where the rules Come From why they're there and that traditional transactional an analysis and those those contractual principles from Hyde and brogon working together but it's also important for us to ask why they're there and whether those are still the right rules in the modern day and just to Cave at that that we know contract law doesn't like the subjective approach and as I said before we can't just go in with a wholly subjective approach to every contractual
• 11:30 - 12:00 dispute there have to be rules in place otherwise chaos Reigns and there has to be something against which we can test what has happened in a particular case it also allows us to look at the context of contract and looking at what the courts have done for example with Battle of the forms cases that have that we've looked at so far you can see that the courts are really trying to ensure that contracts are upheld and the LA the last shot rule
• 12:00 - 12:30 probably does that by allowing a transactional analysis of those situations to take place and in most cases we find that a contract has been formed but in those circumstances there's always a winner and a loser one party wins and the other party loses because one of them is whose standard terms they are actually Contracting on is that what we want and is that th are those traditional rules what we want in the modern day and one of the questions that underpins this
• 12:30 - 13:00 battle of the forms analysis is really about the role of intention and we're not just talking about intention to create legal relations we're talking about the intentions of the parties on what terms did they intend to deal and that really if you look through the cases in the previous section or think about them again when you're making your notes for example you will see that that is really what lies behind the challenging of the L shot rule it's about question questioning whether it's
• 13:00 - 13:30 actually giving effect to the intentions of the parties on what terms did they actually intend to contract because is that not what we should be giving effect to rather than just a an offer an acceptance where one side wins and the other loses so it's not necessarily that simple and straightforward and it risks undermining the whole basis of contract law the agreement and there but thinking about intention not just
• 13:30 - 14:00 intention to create legal relations intention more widely the intentions of the parties in terms of what was meant to be inside of their contract the terms for example in this case there have been many arguments made by academics and other and in other jurisdictions that it is actually intentions intention that should underpin contract law not offer un acceptance so we'll talk about this again when we get to consideration and part payment of debt about whether it should really whether
• 14:00 - 14:30 for consideration particularly should actually exist and I think the same is the question here do we even need these particular rules to be able to find that a valid contract has been formed and on what terms that might be so those are the things thinking about what we looked at at the beginning of the module as well the context of contract law the idea that it's not just the operation of law but what judges have tried to do to change the law from within and why those things did or
• 14:30 - 15:00 didn't work and how it could or could not work those are questions we have to ask and if you want to be critical and you want to think critically and be able to write critical answers on on particular subjects those are some of the questions that you will need to ask so it's the ability to look at these areas of contract law within that wider context the backdrop of what contract law is trying to achieve