Whittaker, Simon --- "Contract Networks, Freedom of Contract and the Restructuring of Privity of Contract" [2011] ELECD 283; in Cafaggi, Fabrizio (ed), "Contractual Networks, Inter-Firm Cooperation and Economic Growth" (Edward Elgar Publishing, 2011)

Book Title: Contractual Networks, Inter-Firm Cooperation and Economic Growth

Editor(s): Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448896

Section: Chapter 7

Section Title: Contract Networks, Freedom of Contract and the Restructuring of Privity of Contract

Author(s): Whittaker, Simon

Number of pages: 20

Extract:

7. Contract networks, freedom of
contract and the restructuring of
privity of contract
Simon Whittaker1

It is always difficult to discuss a topic from the point of view of a legal
system where that legal system does not recognise the existence of the
topic. This is a well-known problem for comparative lawyers. Where
the topic rests on a concept or conceptual framework which is not found
in the legal system to be analysed, various methods are adopted in order
to avoid the difficulty, including the equally well-known `functionalist'
approach which is often coupled with a focus on the way in which similar
facts are analysed across legal systems. However, the topic of this volume
on which I have been asked to write from the point of view of English
law is not as such a conceptual one, as its central theme is `contractual
networks' viewed primarily as a commercial and, therefore, economic
phenomenon. Even so, this topic remains a difficult one for an English
lawyer, given that English law and, for the most part, English lawyers
do not identify `network contracts' (whether known under this name or
some similar name, such as `contractual groups') nor do they regulate
them specially.2 This means that in discussing the topic I need to explain
why it is that English lawyers are not generally attracted by notions such
as `network contracts' or `contractual groups' in order to deal with the
issues which do in fact arise from the complex commercial and ...