Doctrinal methods in contract law in common law jurisdictions

Jeff Berryman

Chapter 2 in Research Methods for Contract Law and Scholarship, 2025, pp 37-63 from Edward Elgar Publishing

Abstract: To understand common law contract doctrinal research methodology, one must first understand how contract doctrine came into existence and its enduring relevance. Historically, the common law was derived from judgments that focused upon proof of particularized facts and their fit to established writs. Contract doctrine emerged as a product of the Industrial Revolution's transformation of commercial and labor practices, the creation of new forms of property, and the new economic and social theories that shaped political discourse. In this chapter, the rise of common law contract doctrine is first described, and its enduring relevance to today's common law is articulated. This lays the foundation for an exploration into research methodology through three distinct examples: the incremental development by the Supreme Court of Canada of a doctrine of good faith performance in contract law; the interaction between legislature and courts in modifying contract doctrine concerning liability for innocent misrepresentations; and the place of party autonomy in correcting aberrant court decisions that are not in keeping with commercial realities. Through these examples, this chapter demonstrates how the common law navigates between the Scylla of certainty and the Charybdis of flexibility to keep common law contract doctrine relevant, but within what common law courts are constitutionally and legitimately able to do.

Keywords: Contract; Common law; Doctrinal research methodology (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035316465
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