Great Debates in Contract Law

Morgan, Jonathan

doi:10.1007/978-1-137-48160-3

Cited by 6 publications

(3 citation statements)

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“…This is because the rule has become unnecessary and there is more to be gained from its abolition than restatement in any manner. 80 As seen above, the dichotomy between penalties and liquidated damages by Lord Dunedin using the idea of in terrorem is quite slender. Commercial entities strive to navigate around penalty clauses.…”

Section: Single Lump Sum On the Occurrence Of One Or More Or All Of Several Eventsmentioning

confidence: 99%

Penalties and liquidated damages in a changing world: rethinking the common law position

Odetola¹

2016

J. Sustain Dev Law Policy

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W hy did Antonio agree to give Shylock a pound of his flesh in the Merchant of Venice? Why was Shylock unable to get his pound of flesh? Parties to a contract are allowed to determine their obligations but cannot freely determine the consequences of breach in the event of nonperformance. Such is the paradox in the law of obligations. Virtually every modern contract contains a liquidated damages clause and common law jurisdictions strive to ensure that such clauses do not offend the rule against penalties. This paper examines the principle of contractual freedom within the narrower context of liquidated damages and penalty clauses. It revisits the principles of the law of penalties as expounded in the classic case of Dunlop Pneumatic Tyre Co. Ltd v. New Garage & Motor Co. Ltd, and considers how well they have fared after a century. In making this evaluation, particular attention is paid to English, Australian and Nigerian law. There are issues thrown up by the rigid dichotomy between liquidated damages and penalties and the extent to which commercial partners can negotiate around them. As commercial contracts become more complex and multi-jurisdictional, clarity, certainty and security of transactions have become more fundamental to commercial dealings. This article finds that the dichotomy between penalty and liquidated damages has not only become irrelevant, it also undermines these fundamentals. Arguments made in favour of the dichotomy are self-defeating and confusing. Judicial attempts to bring the penalty rule in consonance with commercial realities also come with problems of their own. Therefore, an abolition of the dichotomy is advocated. This article proposes that in place of the existing unjustifiable paternalistic approach, all agreed * LL.B (Ibadan), B.L, BCL (Oxon), Law Teacher and Doctoral Researcher at the

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Section: Single Lump Sum On the Occurrence Of One Or More Or All Of Several Eventsmentioning

confidence: 99%

Penalties and liquidated damages in a changing world: rethinking the common law position

Odetola¹

2016

J. Sustain Dev Law Policy

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“…48 Its imprecise scope, indeed its very existence, has attracted criticism. 49 Writing before CTN Cash, Kirby P. in Equiticorp considered that the entire doctrine "render[ed] the law too uncertain and in an area where certainty is highly desirable." 50 Making the test for lawful act duress dependent on social morality, as determined by the judges, hardly assuages the concerns of those already critical of the defence.…”

Section: A Lawful Act Duressmentioning

confidence: 99%

Contract Doctrine, Predictability and the Nebulous Exception

Ahdar¹

2014

C.L.J.

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There is a tendency in contemporary contract law for judges to “never say never” and permit an open-ended exception from the rule. This nebulous exception is designed to cater for the rare instance where application of the rule would be undesirable in the interests of justice. However, this kind of imprecise exception is deleterious in terms of the unpredictability it generates, as well as the attendant increases in time and costs that result. The “never say never” approach is to be discouraged in contract law where commercial predictability, while certainly not inviolable, nonetheless remains a weighty goal deserving of continued deference.

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“…Consideration—the third key element needed to form a contract, once offer and acceptance have been achieved and evidenced (O'Sullivan & Hilliard, 2016)—is also demonstrable in such contexts. Serving as a ‘badge of enforceability’ (McKendrick, 2017, p. 66), the doctrine of consideration requires an active exchanging of things of value (Morgan, 2015, p. 31). In the higher education context it may be argued that academic wisdom, knowledge, experience and support are given in return for students’ time, attention, effort and—of course—fee payments.…”

Section: Introductionmentioning

confidence: 99%

Invitation to trusteeship rather than treat? Higher Education, human rights and student litigation: A response to Fulford (2020)

Diver

2020

Higher Education Quarterly

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This article argues that, as tutors, we are bound not only by the rules of contract law (i.e., to avoid breaching the terms of that which was agreed to), but also by our duty of care, and the principles of human rights law that protect the right to education. We must strive to avoid negligent acts and any potentially harmful practices or policies. Looking to recent litigation, we are bound also to provide useful, meaningful guidance on how learners might best achieve—and subsequently evidence—high levels of intellectual attainment and wider ‘learning gains.’. The concepts of fairness and equitable treatment are key, especially where universities have agreed to widen access and improve opportunities. With the protection of vulnerable learners increasingly leaning towards the provisions—and promises—of human rights law, a sort of estoppel‐led ‘trusteeship’ (over shared knowledge and learning processes) can perhaps also be inferred.

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Great Debates in Contract Law

Cited by 6 publications

References 0 publications

Penalties and liquidated damages in a changing world: rethinking the common law position

Penalties and liquidated damages in a changing world: rethinking the common law position

Contract Doctrine, Predictability and the Nebulous Exception

Invitation to trusteeship rather than treat? Higher Education, human rights and student litigation: A response to Fulford (2020)

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