INTERPRETING CONTRACTS: A COMMON LAW DILEMMA
Keywords: Contract Law
AbstractThis article considers the most appropriate principles for analysing commercial contracts when justifying non-performance. The author highlights the importance of mercantile autonomy, the evolution of exceptions to the rule against non-performance, and the extent to which judges employ a cautious or bold approach to construing contractual obligations in circumstances of non-performance. In considering various judicial methods of construction, including an approach based on a general notion of justice, a rule oriented approach, the insertion of implied terms and a willingness to fill gaps, the author concludes that no one method can satisfy every mercantile situation, and no single contract law may govern. He suggests reform that embraces all approaches and requires balancing the nature of the contract, the type of parties involved, their mutual dealings and their common business practices.
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