Abuse of Rights in English Contract Law: Hidden in Plain Sight?

Abstract

The article argues that the fetters on the exercise of unilateral contractual discretionary powers that were defined in Braganza v BP Shipping Ltd and the limits on damages clauses as redefined in Cavendish Square Holding BV v Talal El Makdessi are imposed to prevent the abuse of contractual rights or freedoms and this is suggestive that a broader principle against the abuse of rights might be at work in English contract law. Whilst English law has traditionally been understood as rejecting a free-standing and general doctrine of abuse of rights, the article explains why this should not be regarded as an obstacle to the proposed analysis. In both the context of contractual discretion and damages clauses, the central importance of abuse is evident from the tests that are applied, the factors that the authorities tell us are relevant to their application and both the high bar for the court to intervene and the flexibility of the relevant standards, which filter out only the most egregious and inadmissible cases.