Doctrine and discretion in the law of contract revisited

Abstract

Professor Sir Guenter Treitel has been one of the most influential scholars in the recent history of English contract law. This article revisits his inaugural lecture at the University of Oxford in which he discerned a movement from doctrine to discretion in the English law of contract. It concludes, by reference to issues considered by Professor Treitel in his lecture and to subsequent developments in the law of contract, that the courts continue to grapple with the difficulty of striking an appropriate balance between doctrine and discretion, although Professor Treitel's fear that English contract law is moving from doctrine to discretion has been largely unrealized. English contract law continues to place a strong emphasis on the importance of certainty in contract law, particularly commercial contract law, but, at the same time, the courts recognize that the law has to contain an element of flexibility if it is to adapt to the changing needs of society and of contracting parties.