Adam Smith and the Social Foundation of Agreement:Walford v Miles as a Relational Contract

Campbell, Ian David (2017) Adam Smith and the Social Foundation of Agreement:Walford v Miles as a Relational Contract. Edinburgh Law Review, 21 (3). pp. 376-404. ISSN 1364-9809

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Abstract

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.

Item Type:
Journal Article
Journal or Publication Title:
Edinburgh Law Review
Additional Information:
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.
Subjects:
ID Code:
87874
Deposited By:
Deposited On:
20 Sep 2017 10:56
Refereed?:
Yes
Published?:
Published
Last Modified:
03 Apr 2020 04:08