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Justifying the application of the theory of efficient breach specifically within the context of commercial contracting.

Kilvington, Liam (2018) Justifying the application of the theory of efficient breach specifically within the context of commercial contracting. PhD thesis, University of York.

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Abstract

This thesis provides a functional, and justifiable application of the theory of the efficient breach of contract within the commercial context. Limiting the theory’s application in this way is the primary original contribution. This is because the theory of efficient breach has not been explicitly applied solely to the commercial setting previously. This is legitimate because the underlying intention behind commercial contracting is profit generation. As such, maximising the wealth which flows from commercial contracts will be the focus of the parties involved. An additional original contribution is that this thesis represents the first major discussion of efficient breach which applies the theory to English law. This thesis also makes additional contributions. A definition of “commercial” in a contract law context is established to frame the discussion that is to follow. It is then outlined that the fundamental structure of English contract law will remain the same whether a dispute concerns a commercial, or a non-commercial contract. However, there is a difference in the approach of the court where rights are pursued for commercial, profit driven reasons in contrast with rights that are of a personal nature. Next, it is set out that in English law, promise is not the basis of contract. As such, the efficient breach of commercial contracts cannot be discounted based on issues of morality which are linked to promise breaking. Numerous other criticisms which have been directed at efficient breach are also discounted. Ultimately, a legitimate formulation of the efficient breach of commercial contracts is outlined. This iteration is permissive, rather than mandatory. It provides efficient optionality, meaning that where a party has the opportunity to breach efficiently, it will not necessarily take place. However, should a party choose to breach, they will be justified. This is a departure from more prescriptive approaches.

Item Type: Thesis (PhD)
Academic Units: The University of York > Law
Depositing User: Mr Liam Kilvington
Date Deposited: 25 Apr 2019 13:13
Last Modified: 25 Apr 2019 13:13
URI: http://etheses.whiterose.ac.uk/id/eprint/23552

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