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The Contract that Neither Party Intends

22 Pages Posted: 19 Jul 2012 Last revised: 29 Mar 2015

David McLauchlan

Victoria University of Wellington - Faculty of Law

Date Written: July 18, 2012


This article responds to the observations of Heydon and Crennan JJ in the recent case of Byrnes v Kendle concerning, inter alia, the irrelevance of the subjective intentions of contracting parties. Their Honours endorsed the view of the well-known American judge and jurist, Oliver Wendell Holmes, expressed nearly 115 years ago concerning the objective approach to contract formation and interpretation: In particular, they suggested that the law of contract is primarily concerned with finding a correspondence of external signs, that the parties’ actual intentions are irrelevant except in ‘limited circumstances’, and that there can be a binding contract that neither party intends because it is only what the parties said that matters in the law of contract, not what they meant? The author discusses several reasons why this view of basic contract doctrine should be rejected.

Keywords: Contract Formation, Objectivity, Contract Interpretation

JEL Classification: K12

Suggested Citation

McLauchlan, David, The Contract that Neither Party Intends (July 18, 2012). Victoria University of Wellington Legal Research Paper No. 6/2013. Available at SSRN: or

David McLauchlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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