Those studying the law of contract have been admirably served by a number of excellent texts and sources books which describe the law but, with a few exceptions, there are few books that critically examine the entire approach taken by English lawyers to the law of contract. Key Issues in Contract, by Professors John Adams and Roger Brownsword is an admirable attempt to help fill this gap.

The main thrust of the book is to aim for greater “rationality” in the law of contract. This means that the law of contract must not only be consistent with itself and other areas of law, it must also be capable of guiding actions in reality and this guidance must accomplish its intended purpose. As well, the authors insist that the law of contract must be substantively rational, by which the authors mean that the law must conform with some justifying principle or end.

Part 1 of the book sets out an overview of the law of contract and gives the reader an introduction to the problems with the classical view of contract which the authors explore later in the book. It not only sets the stage for further discussion, but nicely serves as a review of basic contract doctrines for readers who have been away from the subject or for students who are still trying to understand the basics.

The second part of the book puts into effect the title and takes a deeper look at the “key issues” in contract. Standard problems such as consideration, privity and withdrawal for breach are explored and are used to show that the classical model of contract has difficulties in explaining pre-contractual negotiation, long term relational contracting, network contracts and withdrawal from contracts for economic advantage. Later in this part, the authors look at the more modern questions of good faith in contract and the concept of the “unfair” contract term. The authors conclude that the classical model does not properly explain how contract should work in theory or how contracts do work in practice and suggest that a more co-operative model of contract law could be developed that would be justified philosophically and which would create a more rational approach in practice.

The final part of the book pulls together the authors’ thesis that the law of contract requires a positive duty for all “agents” acting in the realm of contract to have a positive duty to co-operate with each other. The authors try to legitimize their position relying on the dialectical method used by Alan Gewirth in his 1978 book Reason and Morality. This leads to a series of five conclusions in the final chapter of the book which are that (i) the law of consideration be replaced by a concept of legitimate expectations; (ii) there be a stringent duty to disclose, both pre- and post-formation; (iii) the exchange of price and risk in a contract must be balanced; (iv) there be a general duty of good faith in contract; and (v) contractors be protected from post-contract contingencies. The authors recognize that there is much work to be done to settle the details that flow from these recommendations but believe that this would be time well spent as it would address the real problems faced by the law of contract in a rational manner as compared with the irrational distortions of the classical model.

Key Issues in Contract spans the entire spectrum of contract law and it is therefore not reasonable to expect detailed explanations to support all of the positions taken by the authors. One spot that appears to be particularly weak is the little attention paid to the classical concern for certainty and, with it, the idea of minimizing transaction costs. This issue is addressed but the main hope expressed by the authors is that more rational rules of contract will eventually become sufficiently well defined that they will be more certain than the fudged rules of the classical model. However, it is difficult to see that any regime that requires disclosure of material facts can be more certain than one which does not. In insurance contracts, the disclosure relates only to one matter, the risk, and there is a good argument that the duty to disclose in insurance law is still too heavy a burden for the insured.