Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law

Abstract

This article identifies three key problems with the English courts’ current use of Wednesbury unreasonableness to control the exercise of discretion in contract law. First, there are misconceptions about the nature of Wednesbury review in contract law. Second, the intensity with which courts should apply Wednesbury unreasonableness is unclear. Finally, the contents of Wednesbury unreasonableness have been considered vague, leading to uncertainty in its application. This article proposes solutions to each of these problems by examining the jurisprudence and discourse on Wednesbury unreasonableness in public law.

Keywords: Wednesbury Unreasonableness, Braganza, Contractual Discretion, Contract Law, Administrative Discretion, Public Law, Intensity of Review, Deference

JEL Classification: K12, K23, K29, K39