Commercial transactions: The challenge from equity

Research output: Contribution to journalArticleResearchpeer-review

Abstract

Extract: I now return to the dual focus of this paper on liability and remedy. In the context of liability, I shall consider the increasing use by the courts of general standards, encompassed within broad ’equitable’ concepts, as determinants of liability. Such concepts are, very loosely speaking, ’equitable’, not in the sense of necessarily having their origins in the Courts of Chancery, but in the sense of being concerned with providing flexible legal tools capable of giving effect to principles of justice and fairness in a wide variety of contexts (albeit by resort to familiar legal techniques and by analogy with established categories of case). In particular, I propose to consider two concepts gaining increasing currency in our law, namely ’unconscionable conduct’ and an implied duty of ’good faith and fair dealing’ in (the performance of) contracts. Although these two concepts may have differing core areas of operation, with the former focusing on conduct engaged in at the time of entry into contracts, and the latter focusing on the performance and termination of contracts, there will be considerable areas of overlap and convergence in the operation of these concepts, as will be seen below.
Original languageEnglish
Pages (from-to)353-399
Number of pages47
JournalJournal of International Commercial Law and Technology
Volume2
Issue number3
Publication statusPublished - 2004

Fingerprint

transaction
equity
liability
currency
fairness
remedies
performance
faith
speaking
justice
determinants
Law

Cite this

@article{758d624452b94a80958ba17362ab2c55,
title = "Commercial transactions: The challenge from equity",
abstract = "Extract: I now return to the dual focus of this paper on liability and remedy. In the context of liability, I shall consider the increasing use by the courts of general standards, encompassed within broad ’equitable’ concepts, as determinants of liability. Such concepts are, very loosely speaking, ’equitable’, not in the sense of necessarily having their origins in the Courts of Chancery, but in the sense of being concerned with providing flexible legal tools capable of giving effect to principles of justice and fairness in a wide variety of contexts (albeit by resort to familiar legal techniques and by analogy with established categories of case). In particular, I propose to consider two concepts gaining increasing currency in our law, namely ’unconscionable conduct’ and an implied duty of ’good faith and fair dealing’ in (the performance of) contracts. Although these two concepts may have differing core areas of operation, with the former focusing on conduct engaged in at the time of entry into contracts, and the latter focusing on the performance and termination of contracts, there will be considerable areas of overlap and convergence in the operation of these concepts, as will be seen below.",
author = "Joachim Dietrich",
year = "2004",
language = "English",
volume = "2",
pages = "353--399",
journal = "Journal of International Commercial Law and Technology",
issn = "1901-8401",
publisher = "International Association of I T Lawyers",
number = "3",

}

Commercial transactions : The challenge from equity. / Dietrich, Joachim.

In: Journal of International Commercial Law and Technology, Vol. 2, No. 3, 2004, p. 353-399.

Research output: Contribution to journalArticleResearchpeer-review

TY - JOUR

T1 - Commercial transactions

T2 - The challenge from equity

AU - Dietrich, Joachim

PY - 2004

Y1 - 2004

N2 - Extract: I now return to the dual focus of this paper on liability and remedy. In the context of liability, I shall consider the increasing use by the courts of general standards, encompassed within broad ’equitable’ concepts, as determinants of liability. Such concepts are, very loosely speaking, ’equitable’, not in the sense of necessarily having their origins in the Courts of Chancery, but in the sense of being concerned with providing flexible legal tools capable of giving effect to principles of justice and fairness in a wide variety of contexts (albeit by resort to familiar legal techniques and by analogy with established categories of case). In particular, I propose to consider two concepts gaining increasing currency in our law, namely ’unconscionable conduct’ and an implied duty of ’good faith and fair dealing’ in (the performance of) contracts. Although these two concepts may have differing core areas of operation, with the former focusing on conduct engaged in at the time of entry into contracts, and the latter focusing on the performance and termination of contracts, there will be considerable areas of overlap and convergence in the operation of these concepts, as will be seen below.

AB - Extract: I now return to the dual focus of this paper on liability and remedy. In the context of liability, I shall consider the increasing use by the courts of general standards, encompassed within broad ’equitable’ concepts, as determinants of liability. Such concepts are, very loosely speaking, ’equitable’, not in the sense of necessarily having their origins in the Courts of Chancery, but in the sense of being concerned with providing flexible legal tools capable of giving effect to principles of justice and fairness in a wide variety of contexts (albeit by resort to familiar legal techniques and by analogy with established categories of case). In particular, I propose to consider two concepts gaining increasing currency in our law, namely ’unconscionable conduct’ and an implied duty of ’good faith and fair dealing’ in (the performance of) contracts. Although these two concepts may have differing core areas of operation, with the former focusing on conduct engaged in at the time of entry into contracts, and the latter focusing on the performance and termination of contracts, there will be considerable areas of overlap and convergence in the operation of these concepts, as will be seen below.

M3 - Article

VL - 2

SP - 353

EP - 399

JO - Journal of International Commercial Law and Technology

JF - Journal of International Commercial Law and Technology

SN - 1901-8401

IS - 3

ER -