Abstract/Summary

Relational contract theory could, under English law, be considered simply that: an academic theory, too impractical to implement and too imprecise to fulfil ambitions of legal certainty. However, even in the face of subsequent judicial reluctance, the cases of Yam Seng and Bates v Post Office have paved the way for this theoretical construct to permeate practical considerations of commercial contract law. The theory posits, inter alia, that there is a spectrum, at one end are discrete contracts, which are simple exchanges, and at the other end are relational contracts, which depend not only on the contract between the parties but on the relationship underpinning it. The original contribution offered by this thesis is to offer a new category of contract - the bimodal contract - centred around unpacking tangential comments made in the relational contract literature that many contracts will contain both discrete and relational terms. By using the ISDA Master Agreement - an international, standard form agreement - as a case study, we can begin to understand some of the elements which could be utilised as part of a discrete/relational contract spectrum analysis - namely, the composition and intentions of the drafting party, the market in which the agreement is used, and the technological developments being built to complement, facilitate, and, in some cases, supplant traditional contract drafting and negotiation - and how these elements can form part of a macro-level analysis, accompanying any particular interpretative considerations around party or transactional context. From this analysis, the aim is to understand where the ISDA Master Agreement fits on, and to develop a broad framework for how to assess analogous standard-form agreements within the concept of, the discrete/relational contract spectrum.