Australian Contract Law

Contract law encompasses any laws or regulations directed toward enforcing certain promises. The High Court has delivered judgment in Paciocco v Australia and New Zealand Banking Group Limited 2016 HCA 28 (27 July 2016) The case involved consideration of (amongst other issues) late payment costs in unique, irrespective of whether they breach statutory prohibitions relating to unconscionable conduct and/or unfair terms and no matter if or not they constitute a ‘penalty’.

Orthodox contract is, in this respect, distinct from tort: a tort obligation may possibly arise in connection with a choice—as the obligation not to be drunk arises in connection with the choice to operate a car a contract obligation, by contrast, is itself instantly chosen—at the core of each and every present and every acceptance lies, as the Restatement says, an intention to establish an obligation by communicating this intention.

The instances that invoke promissory estoppel to establish contract liability in the absence of any completely articulate guarantee (for purely non-promissory representations produced through pre-contractual negotiations) turn out to have generated a lot more fear than followers, and a systematic assessment of situations governed by these principles shows that absent traditional torts, non-promissory representations do not develop liability for reliance incurred during negotiations (see Schwartz & Scott 2007: 672).

A different dimension of the theoretical debate in contract is its location within, and connection to a wider law of obligations Obligations have traditionally been divided into contracts, which are voluntarily undertaken and owed to a precise person or persons, and obligations in tort which are based on the wrongful infliction of harm to particular protected interests, mostly imposed by the law, and typically owed to a wider class of persons.

This feature of the orthodox doctrine, these critics say, undermines the immanent normativity of contract obligation and causes contract law to diverge from the morality of promise in unattractive strategies (numerous of these claims seem in, for instance, Friedman 1989 Shiffrin 2009, 2007 Brooks 2006) Moral critics of orthodox contract also, and relatedly, attack other characteristics of established law, for example the mitigation doctrine.

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