Presented by Professor Paul Davies, University College London, United Kingdom
It is often said that the courts will not save parties from bad bargains: as Lord Nottingham observed, even “the Chancery mends no man’s bargain”. Courts should be reluctant to develop the law in a way which would allow sophisticated commercial actors to escape (bad) bargains. However, little attention has been given as to what is meant by a “bad bargain”, or why that might be significant. This lecture analysed how parties seek to escape from different types of bad bargain. This analysis was particularly timely since in the current economic climate a number of long-term contracts have become especially disadvantageous to one party, and one consequence of Brexit is likely to be an increase in instances where one party tries to escape a bad bargain. Sympathy for the party which finds itself subject to a bad bargain has led to pressure on courts to find that an agreement is not binding; to expand the scope of the vitiating factors; to liberalise the principles of interpretation and rectification; and to revisit the difficult divide between contract, tort and unjust enrichment when awarding remedies. It was argued that courts should not readily bow to these pressures.
Paul Davies is Professor of Commercial Law at UCL. He was previously a Fellow of Gonville and Caius College, Cambridge and St Catherine’s College, Oxford. Paul has also worked at the Law Commission. Paul has written widely on commercial law and private law more generally. He is the author of Accessory Liability (Hart Publishing, 2015; revised paperback edition, 2017), which won the main Inner Temple Book Prize in 2018, JC Smith’s The Law of Contract (2nd ed, OUP, 2018), and a co-author of Equity and Trusts: Text, Cases and Materials (3rd ed, OUP, 2019 (with Graham Virgo)). Paul is one of the editors of Snell’s Equity and has recently joined the editorial team of Chitty on Contracts. He is also a Barrister of Lincoln’s Inn and an Associate Member of Maitland Chambers.