Rights statement: This article has been accepted for publication by Edinburgh University Press in Edinburgh Law Review, http://www.euppublishing.com/doi/abs/10.3366/elr.2017.0435 Copyright © 2017. Edinburgh University Press.
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Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
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TY - JOUR
T1 - Adam Smith and the Social Foundation of Agreement
T2 - Walford v Miles as a Relational Contract
AU - Campbell, Ian David
N1 - This article has been accepted for publication by Edinburgh University Press in Edinburgh Law Review, http://www.euppublishing.com/doi/abs/10.3366/elr.2017.0435 Copyright © 2017. Edinburgh University Press.
PY - 2017/9/1
Y1 - 2017/9/1
N2 - That the reception in subsequent case law of Leggatt J's outstanding discussion of good faith in Yam Seng Pte Ltd v International Trade Corporation Ltd has been disappointing demonstrates the continuing failure to appreciate the normative constitution of economic exchange and the law of contract.This paper re-examines the concept of economic exchange which may be derived from the work of Adam Smith in order to show that Smith did not conceive of exchange as a system of solipsistic self-interest but as self-interest which is formed on the basis of the mutual respect of the parties to the exchange. The significance of Smith’s views for the law of contract will be demonstrated by a re-examination of the rejection of good faith in Walford v Miles in light of those views. Whilst it is moot whether the law of contract should recognise a general doctrine of good faith, that law must become self-conscious of the mutual respect it requires of parties to a contract which is indicated in the concept of good faith.
AB - That the reception in subsequent case law of Leggatt J's outstanding discussion of good faith in Yam Seng Pte Ltd v International Trade Corporation Ltd has been disappointing demonstrates the continuing failure to appreciate the normative constitution of economic exchange and the law of contract.This paper re-examines the concept of economic exchange which may be derived from the work of Adam Smith in order to show that Smith did not conceive of exchange as a system of solipsistic self-interest but as self-interest which is formed on the basis of the mutual respect of the parties to the exchange. The significance of Smith’s views for the law of contract will be demonstrated by a re-examination of the rejection of good faith in Walford v Miles in light of those views. Whilst it is moot whether the law of contract should recognise a general doctrine of good faith, that law must become self-conscious of the mutual respect it requires of parties to a contract which is indicated in the concept of good faith.
KW - contractual agreement
KW - economic exchange
KW - Adam Smith
KW - good faith
KW - self-interest
KW - relational contract
KW - agreement to agree
U2 - 10.3366/elr.2017.0435
DO - 10.3366/elr.2017.0435
M3 - Journal article
VL - 21
SP - 376
EP - 404
JO - Edinburgh Law Review
JF - Edinburgh Law Review
SN - 1364-9809
IS - 3
ER -