1 Carlill v Carbolic Smoke Ball Co  1 QB 256 (CA).
2 Parsons Ltd v Uttley Ingham & Co  QB 791 (CA).
3 On the high quality of Commercial Court judges, Neil Andrews, English Civil Justice: Progress and Remedies: Nagoya Lectures (Shinzan Sha Publishers 2007) 3–303.
4 AS Burrows, ‘The Relationship between Common Law and Statute in the Law of Obligations’ (2012) 128 LQR 232; and on the codification question, Neil Andrews, Contract Law (2nd edn, CUP 2015) ch 22.
5 Formerly, the Unfair Terms in Consumer Contracts Regulations 1999. On the Victorian flurry of codification of particular transactions (Bills of Exchange Act 1882, the Factors Act 1889, the Partnership Act 1890, the Sale of Goods Act 1893, and later the Marine Insurance Act 1906), A Rodger, ‘The Codification of Commercial Law in Victorian England’ (1992) 108 LQR 570; and the overview in the Law Commission’s report on ‘Sale and Supply of Goods’ (Law Commission Report No 160, HMSO, 1987), para 1.5.
6 For general observations, AS Burrows, Thinking About Statutes: Interpretation, Interaction, Improvement: The Hamlyn Lectures 2017 (2018).
7 Andrews, Contract Law CUP, ch 23; L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives (CUP 2014).
8 On these developments, H MacQueen, ‘Europeanisation of Contract Law and the Proposed Common European Sales Law’ in L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives (CUP 2014), ch 21, at 530–31; for other summaries of these projects, Bénédicte Fauvarque-Cosson, ‘The Contribution of European Jurists in the Field of European Contract Law’ in Mads Andenas and others (eds), Liber Amicorum Guido Alpa: National Private Law Systems (British Institute of International and Comparative Law 2007) 365; Stefan Vogenauer, ‘Common Frame of Reference and UNIDROIT Principles of International Commercial Contracts: Coexistence, Competition, or Overkill of Soft Law?’ (2010) 6 (6) European Review of Contract Law; and (<http://ssrn.com/abstract=15813522010>); Mel Kenny, ‘The (D)CFR Initiative and Consumer Unfair Terms’ in L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives, ch 15.
9 (2016 edition, text and comment), a global project, which is focused on commercial contracts; MJ Bonell, ‘Do We Need a Global Commercial Code?’ (2000–2003) V, Revue de droit uniforme (Uniform Law Review) 469; MJ Bonell (ed), The UNIDROIT Principles in Practice: Case Law and Bibliography on the UNIDROIT Principles of International Commercial Contracts (2nd edn, Transnational Publishers 2006); E Broerdermann, UNIDROIT Principles of International Commercial Contracts: An Article-by-Article Commentary (Kluwer Law International 2018); S Vogenauer and J Kleinheisterkamp (eds), Commentary on the UNIDROIT Principles of International Commercial Contracts (2nd edn, OUP 2015); M Heidemann, Methodology of Uniform Contract Law: The UNIDROIT Principles in International Legal Doctrine and Practice (Springer Publishing 2007); T Kono, M Hiscock, and A Reich (eds), Transnational Commercial and Consumer Law: Current Trends in International Business Law (Springer Publishing 2018); see also observations by M Furmston, ‘A Study of Contract Law in the Major Commonwealth Jurisdictions’ (2014) 31 JCL 61, 65–66.
10 Fauvarque-Cosson, ‘The Contribution of European Jurists in the Field of European Contract Law’ in Mads Andnas and others (eds), Liber Amicorum Guido Alpa: National Private Law Systems (2007) 363, 368–69; see also O Lando and HG Beale (eds), Principles of European Contract Law (Kluwer International 2000); HG Collins, The European Civil Code: The Way Forward (CUP 2008).
11 Fauvarque-Cosson, ‘The Contribution of European Jurists in the Field of European Contract Law’ in Andnas and others (eds), Liber Amicorum Guido Alpa: National Private Law Systems, 363, 368–69.
12 H Eidenmüller and others, ‘The Common Frame of Reference for European Private Law—Policy Choices and Codification Problems’ (2008) 28 OJLS 659.
13 MacQueen, ‘Europeanisation of Contract Law and the Proposed Common European Sales Law’ in L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives, ch 21; S Whittaker, ‘The Proposed “Common European Sales Law”: Legal Framework and the Agreement of the Parties’ (2012) 75 MLR 578; English Law Commission and Scottish Law Commission, ‘An Optional Common European Sales Law … Advice to the UK Government’ (2011) (<https://www.lawcom.gov.uk/project/common-european-sales-law/>).
14 JS Hobhouse, ‘International Conventions and Commercial Law: The Pursuit of Uniformity’ (1990) 106 LQR 530.
15 L DiMatteo, ‘Harmonization of International Sales Law’ in L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives, ch 22; for details of ratifying nations, ibid, at fn 46; and in the same volume, D Saidov, ch 18.
16 J Braithwaite, ‘Standard Form Contracts as Transnational Law: Evidence from the Derivatives Markets’ (2012) 75 MLR 779, 801, citing Lomas v JFB Firth Rixson Inc  EWHC 3372 (Ch),  2 BCLC 120 at : ‘The ISDA [International Swaps and Derivatives Association] Master Agreement … is probably the most important standard market agreement used in the financial world… It is axiomatic that it should, as far as possible, be interpreted in a way that serves the objectives of clarity, certainty and predictability.’ (Briggs J’s decision was reversed, although not in respect of these remarks:  EWCA Civ 419,  2 All ER (Comm) 1076). For another example, see on Petrologic Capital SA v Banque Cantonale De Genève  EWHC 453 (Comm),  ILPr 20, noting the Uniform Customs and Practice for Documentary Credits (UCP) (a set of rules on the issuance and use of letters of credit).
17 The literature is extensive: see J Braithwaite, ‘Standard Form Contracts as Transnational Law: Evidence from the Derivatives Markets’, fnn 1–33, citing, notably, Lord Mustill, ‘The New Lex Mercatoria: The First Twenty-five Years’ (1988) 4 Arbitration International 86 (a sceptic); K Berger, The Creeping Codification of the New Lex Mercatoria (2nd edn, Kluwer Publishing 2010); see also B Goldman, ‘The Applicable Law: General Principles of Law—The Lex Mercatoria’ in JDM Lew (ed), Contemporary Problems in International Arbitration (Martinus Nijhoff Publishing 1987) 113. Naturally, there are sceptics and enthusiasts, romantics and pragmatists.
18 L DiMatteo and others (eds), Commercial Contract Law: Transatlantic Perspectives, ch 20 (by Q Zhou) and ch 21 (by H MacQueen); C Twigg-Flesner, The Europeanisation of Contract Law (2nd edn, Routledge-Cavendish Publishing 2013); S Weatherill, ‘A Ever Tighter Grip: The European Court’s Pro-Consumer Interpretation of the EC’s Directives Affecting Consumer Law’ in Liber Amicorum Guido Alpa: National Private Law Systems, 1037; S Whittaker, ‘A Framework of Principle for European Contract Law’ (2009) 125 LQR 617; and see the EU consumer literature collected in P Cartwright, ‘Under Pressure: Regulating Aggressive Commercial Practices in the UK’  LMCLQ 123 at beginning of the article.
19 AS Burrows, Understanding the Law of Obligations (Hart Publishing 1998) chs 1, 2, and 8.
21 Nykredit Mortgage Bank plc v Edward Erdman Group (No 2)  1 WLR 1627, 1630 (HL),
22 J Cartwright, ‘Liability in Tort for Pre-Contractual Non-Disclosure’ in AS Burrows and E Peel (eds), Contract Formation and Parties (OUP 2010).
23 T Baloch, Unjust Enrichment and Contract (Hart Publishing 2009); AS Burrows, The Law of Restitution (3rd edn, OUP 2011); AS Burrows, A Restatement of the English Law of Unjust Enrichment (OUP 2012); Goff and Jones, The Law of Unjust Enrichment (C Mitchell, P Mitchell, and S Watterson eds, 9th edn, Sweet and Maxwell 2016); G Virgo, The Principles of the Law of Restitution (3rd edn, OUP 2015).
25 Chitty on Contracts (HG Beale gen ed, 33rd edn, Sweet and Maxwell 2018) 1-102 to 1-107.
26  UKSC 63,  1 AC 523.
28  QB 44, 71 (CA); for extensive discussion of facets of the general law of contract within the present context in MG Bridge (ed), Benjamin’s Sale of Goods (11th edn, Sweet and Maxwell 2020) ch 2, section 1, and ch 3.
29  AC 675 (HL); similarly, the leading case on contractual damages concerned an agreement to grant a lease, Robinson v Harman (1848) 1 Exch R 850; 154 ER 363 and the leading case on implied terms of law concerned a tenancy, Liverpool City Council v Irwin  AC 239.)
33  1 AC 185, 196–8 (HL). On this point see also Golstein v Bishop  EWCA Civ 10,  Ch 455; affirming  EWHC 881 (Ch),  Ch 131 at  to  (Nugee QC); the latter adopted Neuberger J in Mullins v Laughton  EWHC 2761 (Ch),  Ch 250; and, in the context of LLPs, see the same conclusion of Henderson J in Flanagan v Liontrust Investment Partners LLP  EWHC 2171 (Ch),  Bus LR 1172,  1 BCLC 177 at  to .
34 Having been fashioned by the House of Lords in Linden Gardens Trust v Lenesta Sludge Disposals  1 AC 85, by way of extension from the original context of contracts for the carriage of goods (Dunlop v Lambert (1839) 6 Cl & F 600, HL).
35 D Brodie, ‘The Autonomy of the Common Law of the Contract of Employment from the General Law of Contract’ in M Freedland (ed), The Contract of Employment (OUP 2016) ch 6.
36  UKSC 32,  AC 154 1223.
37 Founded on Attwood v Lamont  3 KB 571 (CA), which the Tillmann case has overruled.
38  UKSC 48,  AC 142.
39 Noting Cook v Wright (1861) 1 B & S 559; Callisher v Bischoffsheim (1870) LR 5 QB 449 (Court of Queen’s Bench); Miles v NZ Alford Estate (1886) 32 Ch D 266 (CA).
40 Volume 2 of Chitty (2018) contains details of: Arbitration; Bailment; Bills of Exchange and Banking; Carriage by Air; Carriage by Land [no doubt for reasons of space, the contract of carriage by sea is omitted: on that topic see, FD Rose, ‘Carriage of Goods by Sea’ in AS Burrows (ed), English Private Law (3rd edn, OUP 2013) ch 11]; Construction (viz, Building) Contracts; Consumer Contracts; Credit and Security; Employment; Gambling Contracts; Insurance; Restrictive Agreements and Competition; Sale of Goods; Suretyship (viz, contracts of guarantee).
41 Besides Bibliography, Part II, section (16), see PBH Birks, ‘Equity in the Modern Law: An Exercise in Taxonomy’ (1996) 26 Western Australia LR 1, at 52–66 (<http://www.austlii.edu.au/au/journals/UWALawRw/1996/1.html>); AS Burrows, ‘We Do This at Common Law but that in Equity’ (2002) 22 OJLS 1; P Devonshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing 2018); J Glister and J Lee (eds), Hanbury & Martin: Modern Equity (21st edn, Sweet and Maxwell 2018) ch 1; L Maniscalco, Concepts of Equity in Early Modern Legal Scholarship (Brill Publishing 2020); FW Maitland, Equity (J Brunyate ed) (CUP 1936); P Ridge, ‘Modern Equity: Revolution or Renewal from Within?’ in S Worthington, A Robertson, and G Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing 2018) ch 12; Andrew Tettenborn, ‘Of Debts, Damages and Errant Trustees’ in S Degeling, J Edelman, and J Goudkamp (eds), Contract in Commercial Law (Thomson Reuters 2016) ch 13; Sir Geoffrey Vos, ‘Contractual Interpretation: Do Judges Sometimes Say One Thing and Do Another?’ (2017) 23 Canterbury L Rev 1, 13, noting the different professional background of Commercial Court and Chancery judges (‘The common law and commercial judges have always taken a harder line on the construction of written contracts, holding commercial men to their bargains. But yet, they are sometimes softer when it comes to equitable remedies than those more familiar with them.’). S Waddams, ‘Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)’ (2012) 33 Journal of Legal History 185; SM Waddams, ‘Good Faith, Good Conscience, and the Taking of Unfair Advantage’ in A Dyson, J Goudkamp, and F Wilmot-Smith (eds), Defences in Contract (Hart 2017) ch 4 (and noting, ibid, 86, the connection between good faith and equitable concepts of fair dealing, and citing M Hesselink, ‘The Concept of Good Faith’ in A Hartkamp and C Bar (eds), Towards a European Civil Code (4th edn, Kluwer Law International BV 2010) 648); S Worthington, Equity (Clarendon Press 2003).
42 For judicial regrets that Equity has not retreated from general contract law, United Scientific Holdings Ltd v Burnley Borough Council  AC 904 (HL) 924–25, Lord Diplock; 944–45, Lord Simon, 957–58, Lord Fraser.
43 Attorney-General v Blake  1 AC 268 (HL).
44 cf in UBS AG v Rose Capital Ventures Ltd  EWHC 3137 (Ch),  2 BCLC 47 at  to , Chief Master Marsh noted that the secured lender’s discretion whether to call in a loan was subject only to the duty of good faith which Equity imposes within the mortgagor/mortgagee relationship.
45 On which One-Step Support Ltd v Morris-Garner  UKSC 20,  AC 649 at ,  (Lord Reed),  to  (Lord Sumption).
46 Pitt v Holt  UKSC 26,  2 AC 108; explained by Morgan J in Van der Merwe v Goldman  EWHC 790 (Ch).
47 The old line of Equitable authority seems to have become comatose: Williams v Bayley (1866) LR 1 HL 200; classified by Lord Denning MR, in Lloyd’s Bank Ltd v Bundy  QB 326, 338 (CA), as a case of ‘undue pressure’, citing Lord Westbury, (1866) LR 1 HL 200, 218–19; P Winder (1939) 3 MLR 97, 110 ff and (1962) 82 LQR 165; Kaufman v Gerson  1 KB 591 (CA); Mutual Finance Ltd v Wetton & Sons Ltd  2 KB 389, Porter J; but note, in the context of promissory estoppel, D & C Builders v Rees  2 QB 617, 625 (CA) (Lord Denning MR) (‘clean hands’ concept).
48 Bank of Credit & Commerce International SA (in liquidation)  UKHL 8,  1 AC 251 at .
49 Union Eagle Ltd v Golden Achievement Ltd  AC 514 (PC); see also Chitty (2018) 1-045, noting, in particular, remarks by Lord Hoffmann in the Union Eagle case, 518, and Lords Scott and Walker in Cobbe v Yeoman’s Row Management Ltd  UKHL 55,  1 WLR 1752 at  and .
50 MG Bridge, ‘Innocent Misrepresentation in Contract’  CLP 277.
52 In the United States, the fact that the remedy of injunction is ‘equitable’ places a claim for such relief outside the constitutional guarantee of jury trial: G Hazard and M Taruffo, American Civil Procedure (Yale University Press 1993) 130.
53 M Furmston (ed), Cheshire, Fifoot, and Furmston’s Law of Contract (17th edn, OUP 2017) 40–42.
54 Blindley Heath Investments Ltd v Bass (also known as Dixon v Blindley Heath Investments Ltd)  EWCA Civ 1023,  Ch 389 at .
55  UKSC 4I,  AC 129; noted, Paul S Davies  CLJ 267; T Pilkington and J Eldridge (2019) 135 LQR 526; JL Yap (2020) 31 ICCLR 81.
56  EWCA Civ 1447,  1 WLR 1192. By contrast, no such contract was found in Tod v Swim Wales  EWHC 665 (QB), Choudhury J (at  distinguishing the Modahl case, and at  considering factors articulated in Heis v MF Global UK Services Ltd (in administration)  EWCA Civ 569,  Pens LR 225 at , Vos LJ). Nor was an implied contract found in Bony v Kacou  EWHC 2146 (Ch); nor in Baird Textile Holdings Ltd v Marks and Spencer plc  EWCA Civ 274,  1 All ER (Comm) 737.
57 GDE llc v Anglia Autoflow Ltd  EWHC 105 (Comm),  1 WLR 2381, notably at  (Julia Dias QC) (concluding that the facts did not support the inference of such a tacit consent).
58 The complicated case law is considered in Andrews on Civil Processes (2nd edn, Intersentia Publishing 2019) 33.18 ff.
59  Lexis Citation 3095; The Times, 16 December 1993 (CA).
60 The nature of consensus in that context was carefully analysed by the Court of Appeal in FSHC Group Holdings Ltd v GLAS Trust Corporation Ltd (Rev 1)  EWCA Civ 1361,  Ch 365.
61 AWB Simpson, ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 LQR 247.
63 For detailed examination of contractual innovation and developments, Neil Andrews, ‘Innovation in the Law of Contract and Civil Justice’ (Jacobson lecture, Israel) Part 1, (2015) Lis International 99–103; Part 2, (2016) Lis International 132–41.
68 It was firmly rejected by a House of Lords led by Lord Scarman in National Westminster Bank v Morgan  AC 686, 708; and Dillon LJ commented in Alec Lobb Garages Ltd v Total Oil Great Britain Ltd  1 WLR 173, 183: ‘inequality of bargaining power must … be a relative concept. It is seldom in any negotiation that the bargaining powers of the parties are absolutely equal.’
69 Transfield Shipping Inc v Mercator (‘The Achilleas’)  UKHL 48,  1 AC 61.
70  UKPC 10,  2 All ER 1127, notably at .