The topic of non-disclosure is a crowded field in which scholars since Cicero have been puzzling about the right answer. So what does Beale bring that is new? First, Beale offers us a presentation of contemporary common law approaches compared with those of France and Germany. He extends the range of comparison and this enables the reader to evaluate the Principles of European Contract Law (PECL) and the Draft Common Frame of Reference (DCFR) as the possible via media in which the aspirations and differences of legal systems can be reconciled. But secondly, and more fundamentally, he asks “What is the paradigm of contract with which each system is working?” He is concerned to ensure that comparison of legal systems recognises that apparently similar legal questions may actually be different because the typical case to which legal rules are addressed is different in each system. Furthermore, the issue of what is the right rule is assessed in terms of the purposes for which contract law exists. As he says, that question is not just technical but “raises more fundamental issues about the underlying policy or philosophy of our contract law and the kind of contract law we want” (p. 14).

The work is made readable by the use of concrete examples which are presented in clear detail. The book starts with contrasting approaches of English and German courts on non-disclosure. The contrasting solutions invite reflection on the reasons for differences. This work is careful to present not just cases that have come to court arising form the general law of contract, but also to locate the legal rules within the regimes of regulatory law and standard business practices. The point is made that, though English law is wary of general legal rules which require disclosure where there is inequality of information, regulations such as the FSA Conduct of Business Rules and High Level Principles, as well as National Conveyancing Protocols are examples of where one party is required to disclose relevant information to the other party (pp. 23–26). By adopting a functional approach, Beale is rightly able to reveal a more sophisticated picture which is much closer to continental European systems: “to assess any need for change, we need to look not only at ‘contract law’ but also at regulation and practice” (p. 26). In other words, a proper exercise of comparative law needs to look to the whole range of normative standards which affect a situation in one country, whether they are technically “law” or not. In this, he relies on his earlier work about the importance of informal agreements among business parties who know each other well.

Beale's presentations of French and German law make effective use of the work of others, but present them in a concise and readable form that will be attractive to those not familiar with the materials. The reader is given enough law and theory to understand the problems. Those who are more familiar with the materials might have liked a fuller presentation of the policy issues for and against disclosure. In part, Beale attributes this to the character of national debate (e.g. in Germany: pp. 59–60), but it may be that the common lawyer has a particular idea of what a “policy” argument looks like – a rather utilitarian balancing of advantages and disadvantages. Beale's own account suggests that there are moral arguments couched more in terms of the balance between different moral values such as protecting reliance and social solidarity (see p. 49 on Ripert and p. 59). Beale's own theory is not fully developed in relation to the non-English systems discussed, so we often get statements of preferences for one approach rather than another without a full explanation of the reasons (e.g. pp. 76–8, where tests of good faith and fairness are rejected in favour of informed consent). But the theoretical discussion is restricted to chapter 3 on English law.

Beale's coverage of other European systems is briefer. But the result of the survey is to contrast continental systems with their emphasis on the need for genuine informed consent and not taking unfair advantage of information that one contracting party knows to be of importance to the other with the common law's idea of what is good business. He notes the way in which the proposed common principles for Europe depart from the French and German models and protect the expectations of the non-mistaken party.

The discussion of the appropriate solution for English law starts with the New Zealand Contractual Mistakes Act 1977, since it offers a common law example of a regime based on fairness. Instead, Beale develops a plausible “informed consent” model. He sees cases of deliberate silence by a party in possession of important information as a good situation for granting relief on moral grounds and he sees little force in the idea that people will behave less carefully in the market if they can get judicial relief in such cases. In other words, the theory of contract underpinning his approach requires that a party is bound only when they genuinely consent, having acted reasonably in informing themselves, but that the other party is not able to take advantage of a mistake about which he knew or (quaere) ought to have known (pp. 82–4). Pace Atiyah, inducing reliance is not, in itself, a factor in creating the bindingness of a contractual obligation, but it may be a reason for giving rise to a duty to compensate the other party (as in German law) or for limiting the kind of remedy that the mistaken party can seek. The proposal (set out on p. 98) is qualified, broadly following Kronman, by the idea that hard-won information (e.g. through significant investment) need not be disclosed. Rather than present this as a market limitation, Beale presents it as a test of whether non-disclosure was “compatible with good faith and fair dealing” (p. 93), suggesting that any test cannot escape the standard of good faith which he is reluctant to admit as the principal test.

Beale recognises his proposal is different from how existing English law operates and is close to the contemporary German ideas that parties should not be bound by terms that come as an unfair surprise. His explanation of the differences between the systems draws on his experience in the Law Commission. Like Lord Goff, Beale sees the common law conditioned by the professional reaction of judges to the cases that typically come before them (p. 105). Legal certainty is preferred in England to judicial intervention on grounds of fairness in part to avoid delaying tactics on the part of the party in a commercial contract who has a less advantageous bargain (pp. 105–6). This preoccupation with the large commercial contract contrasts with the French and German “typical” case which focuses on small business and consumer contracts. English “residual” contract law (i.e. general contract law outside areas like consumer or employment contracts or non-contract regulations) remains less sensitive to questions of morality. In his view, the outer (moral) limits of contractual behaviour are set widely in English law (p. 107). In this way parties are encouraged to determine their obligations in advance and that they will be interpreted in a fairly formalist way (p. 110). Such an approach fits the large commercial contract where parties are legally advised. This discussion of the rationale for English “residual” contract law (pp. 108–113) is enlightening and well structured. It does engage in the theory at more length than earlier discussions of French and German laws. Beale explains the differences between systems in terms of the “typical” case in a way that makes sense of the approach of the legal systems. But it may not be complete picture, as his earlier (briefer) reflections on the role of morality make clear. The more deontic morality of continental legal systems stands in contrast to English preoccupations with utility in the market. Perhaps a more developed article on contract theory should be the sequel to this stimulating book.