Assessment in a socio-legal contract module
Assessment in contract law, like most common law modules on the undergraduate degree, is traditionally tied to the fact-pattern test. A module that uses socio-legal materials risks failing to capture a review of the facts within that form of assessment. Once labelled as a secondary concern within assessment, such materials risk falling into the dreaded category of 'additional reading'. The attraction of using RTS v Muller is precisely that it might open up new avenues for assessment. It is situated within an industry standard form about which, despite the plethora of such contractual structures in the commercial world, it seems that law students can still graduate barely knowing of their existence and function. There may be a passing recognition that such contracts played a role in cases such as Phillips v Hyland (1984) but no real understanding of the significance of the court's interventionist stance in striking down a term within a negotiated industry standard contract as failing the reasonableness test under the Unfair Contract Terms Act (UCTA) 1977.
A contract drafting and planning assessment would encourage students to see Macneil's discrete and relational scenarios as existing on a spectrum rather than as different transactions and to view a contract as a linear journey navigating a path between the expectations of the two parties (Macneil, 2001). Within this type of assessment, students can be asked to suggest a number of clauses that should go into a contract, give their reasons for selecting those clauses and then draft those clauses. The clause selection and explanation is tied to what empirical studies tell them about contract planning and operation. The drafting of those clauses tests both commercial awareness of issues such as risk assignment and insurance availability and also knowledge of doctrinal issues such as UCTA 1977 and the doctrine of frustration. One of the authors was using an assessment similar to the one described here in the hot-bed of radicalism that was the Keele Law School of the 1990s. It withered on the vine in subsequent progression to more conventional establishments. At Keele, this assessment included a briefing on the task from local industries and practitioners. This gave students the opportunity to consider how to deal with particular issues that were cited by the prospective users of the contract as important to them. In the current educational policy climate this seems once again an ideal opportunity for employer engagement with the law school curriculum.