Understanding PS Atiyah (contract law) -help!
November 22, 2012 5:07 AM   Subscribe

Hi Mefi-ers. I was wondering if anyone here who is doing/have done law could help point me to resources or journal articles (which we've not been introduced to. I only know of the case databases: lexis and westlaw) that would help me demystify a contract law question I've been set by my seminar leader? I'm basically a first year undergraduate llb law student at an English university; I'm studying contract law as one of the compulsory first year modules.

This is the question we've been told to think about (with reference to this case: The Moorcock [1889] 14 PD 64):

"Whenever a person is held bound by a promise or a contract contrary to his actual intent or understanding, it is plain that the liability is based not on some notion of a voluntary assumption of obligation, but on something else." - Patrick S. Atiyah

My classmates and I had hoped that we would be set a problem question instead for our first assignment, but alas..

I feel like we're being thrown in the deep end in being set something which calls for critical analysis only a month into the course. I have no problems understanding cases, I just find the way in which the question's set rather daunting.

I'd be really grateful for any pointers.

Thanks very much in advance
posted by anonymous to Education (8 answers total)
Journal articles are on westlaw and lexis. Look in the directory for them. As a law school professor, I can tell you that the struggle in the deep end is part of the process. Good luck!
posted by *s at 5:23 AM on November 22, 2012

The Wikipedia article on Moorcock may be of some help. Take a look at it. One (quite simplified) aspect is that contract obligations are not confined to what the two parties expressly agree on. In addition, there are obligations that the legal system itself imposes. Think about what those would be (imagine government itself as a third person at the bargaining table, and think about what conditions it would demand, and why).
posted by Mr. Justice at 5:25 AM on November 22, 2012

Do you have a law librarian? This person should be your first stop. They are generally delighted to show people how to search properly. If you feel like this is monopolising their time, make an appointment with a small group of students to see your librarian.

Without current access to either database, I suspect but can't confirm, you should be able to do a journal article search based on cases considered in the article. Check from the case judgement if there are other cases you should be searching for discussion of alongside the Moorcock to hone your results in a little further.

Remember all your classmates are at the same level as you are, you aren't being left behind because you haven't 'got it' instantly. Do your best with this, I bet it isn't major marks and you are being set the task to learn your way around journals.

Good luck.
posted by Trivia Newton John at 5:32 AM on November 22, 2012 [1 favorite]

You could talk to a subject librarian in your University library who can help direct you to relevant journal articles and resources in regards to assignments. You may even have access to Practical Law Company (PLC) through your uni library, which is useful for grounding/case analysis.

If it helps, the standard books for contract laws are: Cheshire, Fifoot and Furmston's law of contract and Treitel's The law of contract (in my previous experience as a law librarian, although I worked in corporate law firms, not academic) which your University library should hold.
posted by halcyonday at 5:45 AM on November 22, 2012

I would start by tracking down the source of the Atiyah quotation, so as to read it in context.

And here is an article in the Melbourne University Law Review that describes the "voluntary assumption of obligations" issue quite well. It covers scenarios beyond The Moorcock, but they help illustrate the issue. Tracing the debate through the footnotes should help you turn up some other useful resources.
posted by robcorr at 5:47 AM on November 22, 2012

This is about obligation under a contract despite a lack of intent to be bound. Why might the law still enforce such a contract? Terms to look up, if you haven't heard them in the contractual context: consideration, benefit, burden, reliance. understnading how those concepts mesh in contract law will help.

Here's an excerpted chapter from an English textbook that might help get your footing.

Here's a relevant law journal article that discusses it, in context of comparing American and English law on the subject.

Also, for future reference, TLS isn't going to be of much help when it comes to English cases and law, except for a few cases and doctrines that routinely appear in American casebooks. (eg Hadley v. Baxendale, the M'naghten rule, Polemis, and so forth.)
posted by snuffleupagus at 5:47 AM on November 22, 2012 [1 favorite]

I feel like we're being thrown in the deep end in being set something which calls for critical analysis only a month into the course.

You are. But you're not being asked to come up with a 'right' answer. Instead your professor wants to see how you think, whether you're able to pick apart the issue down to the bare bones and come up with your own point of view.

This is really an identifier for your professor so he has an idea at an early stage of who in the class is the philosophical thinker type of lawyer and who is the problem-solver type.
posted by essexjan at 7:59 AM on November 22, 2012 [1 favorite]

2nding "talk to your legal librarian", and that you can search journal articles on Lexis/Westlaw. You should be able to find related articles directly from the case record on Westlaw, and from the case record in the CaseTrack database in Lexis. I'd also hit up Legal Journals Index which is on Westlaw.
posted by Infinite Jest at 11:50 AM on November 22, 2012

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