Commercial Expectations and Cooperation in Symbiotic Contracts: A Legal and Empirical Analysis
Justifying an expectations approachWhat is a symbiotic contract?SummaryDuty to cooperate – case law and commentBasic principle – duty to cooperatePrevention of performanceReasonable endeavours, diligence/facilitationDefects and rights to cureCommunication or constructive engagementActive cooperation/accepting reasonable solutionsControl of contractual decision-makingGeneral principlesDecisions to exercise absolute contractual rightsCommercial contractsConstruction contractsTaking the interests of the other party into accountHow to make a decisionConclusionAppendix A to Chapter 2.7 – typical contract decision-making powersThe apparatus of contract interpretationConclusionEmpirical research: survey and resultsMethods and resultsRespondent sample and demographicsSurvey and interview designSurvey – general resultsOpen questions – enjoyment and successThe vignettes/case studiesVignette 1 – the power and the story – the machine that didn’t work and the reluctant supplierVignette 2 – decide or concur? You have a decision to make: on a multi-contractor site how do you allocate accommodation space?Vignette 3 – an offer he can’t refuse? The blackmailing subcontractor – that’s you!Vignette 4 – is it about the ketchup? – the opportunistic and unreasonable client who poisons the relationshipThemes from the vignettesGovernance questionsNegotiation questionsPunitive measuresTerminationFast-track dispute resolution measuresQuestion 16 – Self-help remediesCooperation themesQuestion 14 – How important is cooperation in managing your contracts?Question 16 – What does cooperation mean in contract management?Question 15 – Which contract terms promote cooperation?How is cooperation achieved?Conclusions from this empirical evidenceCooperation is importantWhat cooperation meansCooperation is achievableSummaryAppendix A – sample SIPOC for a new kitchenThe source, justification and application of the duty to cooperateTheoretical perspectives on commercial expectationsThe change in commercial reality and commercial practiceMeaning of commercial expectationsWhy these expectations should be given legal forceThe source of the duty – commercial expectations – Polyfilla, penumbra or polysemia?Evidence of market practiceCustomThe parties’ history – overviewThe parties’ history – prior dealingsThe parties’ history – negotiationsThe parties’ history – subsequent conductSurveysThe commercial judgeConclusionThe third way: how it is differentThe third wayDefinitions of cooperationGood faith in Civil LawFull-blooded relational scholarshipOther academic constructs – mainstream obligations scholars and hybrid or para-relationistsLaw and economics definitionsTrust based definitionsManagerial thoughtsTit-for-tat ≠ cooperationConclusionRemedies, antidotes, and enforcement mechanismsRemedies for preventionWrotham Park/negotiating damagesDamages for failure or refusal to negotiateStatutory adjudicationLimiting the right to determineCost penaltiesA few hard casesMedirestThe relevant factsApplying the TDTCWhat remedies should be considered?Portsmouth City Council v Ensign HighwaysThe relevant factsApplying the TDTCWhat remedies should be considered?The Post Office litigationThe relevant factsApplying the TDTCWhat remedies should be considered?Yam Seng Pte Ltd v International Trade Corporation Ltd (Yam Seng)The relevant factsApplying the TDTCWhat remedies should be considered?Bristol Groundschool Ltd v Intelligent Data Capture LtdThe relevant factsApplying the TDTCWhat remedies should be considered?Communication cases – Mona Oil, AE Lindsay and Peter DumenilThe relevant factsApplying the TDTCWhat remedies should be considered?J & H Ritchie Ltd v Lloyd LtdThe relevant factsApplying the TDTCWhat remedies should be considered?D&G Cars Ltd v Essex Police AuthorityThe relevant factsApplying the TDTCWhat remedies should be considered?Decision-making powers – Nash and LymingtonThe relevant factsApplying the TDTCWhat remedies should be considered?Day-to-day management – the mundane and the more mundaneThe relevant factsApplying the TDTCWhat remedies should be considered?Walter Lilly & Co. Ltd v Giles Patrick Cyril Mackay and DMW Developments LimitedThe relevant factsApplying the TDTCWhat remedies should be considered?General thoughts on the casesConcluding thoughts and suggestion for reformBibliography
