This chapter subjects the revival of formal and classical law values in contract law to critical examination. The emergence of a commercially oriented contract law is explored across a number of contract developments over recent years: the reassertion of party autonomy and the emphasis on contract law as default rules; the return to a formalist style of contract interpretation; the marginalisation of equity and considerations of public policy in contract; the tendency of judges to uphold contract terms whose validity was previously regarded as questionable (‘no oral modification’ and ‘no reliance’ clauses); the dilution of common law controls on contract terms (in relation to penalties, for example).The first part of the chapter examines recent contract law developments that suggest the re-emergence of formalism in law. The second part explores the common law’s retreat from a role as general regulator of contracting activity in the context of an increasingly contractualised society.

So far, we have seen that derivatives mis-selling cases have three typical features: multiple claims; complex trials; and, as many of the recent cases suggest, unsuccessful outcomes for claimants. The cases show that there are two fundamental reasons why many mis-selling claims based upon contract and tort are unsuccessful. The first is the claimant’s failure to establish all of the necessary elements of the claim, and the second is the defendant’s successful reliance upon contractual disclaimers. The preceding chapter considered the high bars involved in establishing certain types of claims associated with mis-selling litigation. Overall, it argued that it would be exceptional for a claimant to be in a position to establish fraud, while the core claims for mis-representation and breach of duty require claimants to establish certain elements with a high degree of precision and specificity. At the same time, statutory schemes of redress offer piecemeal coverage only, while the courts have been unpersuaded by attempts to construct alternative avenues for redress based upon tort or equity. These factors heighten the relevance of private law claims within the regulatory matrix, and help to explain why mis-selling claims involve such a diverse set of market participants.