What’s Wrong with the Australian Law of Contract?

Abstract

The Australian Government is in the process of reviewing the law of contract, with codification being one option under consideration. This article explains the background to the review and considers the case for codification. Two major problems are identified with the current law: inconsistent or overlapping statutory regulation, both between and within the various jurisdictions; and the inability or unwillingness of the judiciary (especially the High Court) to resolve uncertainty on issues such as the evidence admissible for the interpretation of contracts and the recognition of a general duty of good faith and fair dealing. Some observations are offered on what form any new ‘code’ might take, and who should be drafting it.

Keywords: law of contract, Australian Government

JEL Classification: J31