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Articles 121 - 145 of 145
Full-Text Articles in Contracts
Contract Law, Andrew Phang
Contract Law, Andrew Phang
Research Collection Yong Pung How School Of Law
As expected, the number of Singapore cases during the year under review impacting the law of contract is enormous. As I have mentioned in previous reviews, this is due to the fact that the law of contract permeates virtually all areas of the law of obligations – and, on occasion, beyond as well. I will therefore adopt the approach which has been adopted during previous years: which is to focus, in the main, on general principles. There have – as we shall see – been a few cases that are of especial significance. Not surprisingly, given the fact that the …
Mistake In Contract Law —Two Recent Cases, Andrew Phang
Mistake In Contract Law —Two Recent Cases, Andrew Phang
Research Collection Yong Pung How School Of Law
The doctrine of mistake in contract law has had a chequered history. Indeed, its very existence has been questioned (see, e.g., Slade, (1954) 70 L.Q.R. 385 and Atiyah and Bennion, (1961) 24 M.L.R. 421). But, like a bad penny that will not go away, the doctrine remains stubbornly embedded in the contractual landscape and has in fact witnessed a small revival of sorts in recent years (see, e.g., Clarion Ltd. v. National Provident Institution [2000] 2 All E.R. 265 (noted Phang, (2002) 1 J.O.R. 21)).
On Justificiation And Method In Law Reform: The Contracts (Rights Of Third Parties) Act 1999, Andrew Phang
On Justificiation And Method In Law Reform: The Contracts (Rights Of Third Parties) Act 1999, Andrew Phang
Research Collection Yong Pung How School Of Law
The present article, whilst focusing on the English Contracts (Rights of Third Parties) Act 1999, does not canvass the more specific details of that Act which have been dealt with quite comprehensively elsewhere. The focus of this article is broader and is dual in nature. It will examine, first, the justification for the 1999 Act and, in particular, attempts to respond to the critique that the Act is wholly anathema to the underlying justification of the doctrine of privity itself. It will also consider whether or not the 1999 Act is an effective improvement over the existing (as well as …
When Do Rights Arise Under The Contracts (Rights Of Third Parties) Act 1999 (Uk)?, Tiong Min Yeo
When Do Rights Arise Under The Contracts (Rights Of Third Parties) Act 1999 (Uk)?, Tiong Min Yeo
Research Collection Yong Pung How School Of Law
There are two aspects to the common law doctrine of privity of contract. The first, that a contract cannot impose liabilities on a third party, is not very controversial. The second, that in general a contract can only confer rights on parties to the contract even if it is clearly the intention of the contracting parties to benefit a third party, is highly controversial, and has been the subject of much judicial criticism.
Rationalising Restitutionary Damages In Contract Law: An Elusive Or Illusory Ques, Andrew Phang, Pey Woan Lee
Rationalising Restitutionary Damages In Contract Law: An Elusive Or Illusory Ques, Andrew Phang, Pey Woan Lee
Research Collection Yong Pung How School Of Law
The present article surveys various issues in the law relating to the award of restitutionary damages in contract law, utilising as its point of focus the recent House of Lords decision in Attorney-General v Blake. It explores, in particular, two possible (albeit quite different) routes towards the recovery of such damages; the first based on the (more traditional) compensatory basis and the second on the (more controversial) restitutionary basis for disgorgement of the defendant's gain. While we argue that there is, on a more general level, no overriding objection in principle to the award of restitutionary damages for cynical breach …
Contract Law At Century's End: Some Personal Reflections, Andrew B.L. Phang
Contract Law At Century's End: Some Personal Reflections, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
As we approach the end of the second millennium, the common law of contract-transplanted via colonialism into many lands and climes-has indeed flourished. It has certainly developed apace in the land of its origin, England, but has also evolved in distinct directions elsewhere, particularly in Australia and New Zealand.2 But this development is simply part of a continuous process and a great many interesting issues remain to be considered at the commencement of the next millennium and beyond. This is due, in part, to the very diversity that has been briefly alluded to. However, even on a more general level, …
The Singapore Electronic Transactions Act 1998 And The Proposed Article 2b Of The Uniform Commercial Code, Andrew B.L. Phang
The Singapore Electronic Transactions Act 1998 And The Proposed Article 2b Of The Uniform Commercial Code, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
It is axiomatic that the law must change with the times. And nowhere is this more starkly demonstrated than in the shift, particularly during the last decade or so, into the information age - a shift that has radically changed the face of commerce, and will continue to do so in the years to come. In the context of commercial law, the focus on goods and property, so prevalent particularly in the middle of this century, is now giving way to an acknowledgment that the relevant legal regimes must accommodate information as contractual subject-matter. In this regard, it is widely …
Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston
Is There A Duty To Negotiate In Good Faith?, Michael Philip Furmston
Research Collection Yong Pung How School Of Law
One of the most interesting questions concerning modern contract lawyers is whether, and if so when, there may be a duty on parties to a contract to negotiate in good faith? This may seem an odd question for an English lawyer to raise, granted the refusal of the House of Lords in Walford v. Miles [1992] 2 A.C. 128 to recognise even the effectiveness of an agreement to negotiate in good faith but this case has not escaped cogent criticism (Neill (1992) 108 L.Q.R. 405) and it rests on an axiom (that this is a duty which cannot be enforced) …
Commentary On 'The Renegotiation Of Contracts', Howard Hunter
Commentary On 'The Renegotiation Of Contracts', Howard Hunter
Research Collection Yong Pung How School Of Law
Professor John Carter has identified a theme of growing importance in commercial transactions, especially as the number of those that are long in duration and that cross political or cultural lines increases. It is difficult under the best of circumstances ex ante to negotiate for all contingencies in a dynamic economy. Allowing, or requiring, post hoc renegotiations every time there is a change in circumstances could reduce substantially the utility of contract as a risk allocation device that provides some measure of privately ordered certainty unless the use of post hoc renegotiation is carefully circumscribed.
Commentary On 'Assignment Of Contractual Burdens', Howard Hunter
Commentary On 'Assignment Of Contractual Burdens', Howard Hunter
Research Collection Yong Pung How School Of Law
Professor Michael Furmston begins his fine paper with the statement that ‘Contract textbooks treat it as axiomatic that contractual burdens cannot be assigned’. This commentary can begin with the equally forceful statement that contract textbooks in the United States treat as axiomatic the proposition that most contractual burdens can be freely assigned.
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Research Collection Yong Pung How School Of Law
There is little with which to disagree in Professor Waddams' paper on the categorisation of damage recoveries in the cases posited, viz, those involving a breach which results in benefit to the breaching party but no loss of any consequence to the nonbreaching party. If the goal of contract remedies is to compensate the plaintiff for loss, then, presumably, there should be no recovery at all in such cases. At most there might be nominal damages to compensate for some transaction costs or perhaps as a ’declaration of rights’. In some of the cases considered by Waddams, breach might be …
Frustration Of Contracts For The Sale Of Land In Singapore, Andrew B.L. Phang
Frustration Of Contracts For The Sale Of Land In Singapore, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
The recent Singapore Court of Appeal decision of Lim Kim Som v. Sheriffa bah bte Abdul Rahman' is significant for at least two specific (and related) rea in the context of the doctrine of frustration: first, because it pertains to the m particular issue as to whether a contract for the sale of land can be frustrated; second, because it also raises certain significant questions with regard to m general aspects of the doctrine itself.
Sub‐Bailments And Consent, Andrew B.L. Phang
Sub‐Bailments And Consent, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
Of the two major strands existing in the increasingly important topic of sub- bailment on terms, one has become well settled, the other has been shrouded in ambiguity for close to two decades. The recent Hong Kong Privy Council decision of The Pioneer Container’ reaffirms the first strand and, more importantly, delivers a definitive pronouncement on the second.
Beyond Pepper V. Hart: The Legislative Reform Of Statutory Interpretation In Singapore, Robert C. Beckman, Andrew B.L. Phang
Beyond Pepper V. Hart: The Legislative Reform Of Statutory Interpretation In Singapore, Robert C. Beckman, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
One of the major controversies in the area of statutory interpretation has centred on the use of parliamentary materials as extrinsic aids by courts in interpreting legislation. The English courts long prohibited any reference to parliamentary materials.' Legislation was passed in Australia in the 1980s to allow liberal reference to parliamentary materials in the courts. More recently, a seminal decision of the House of Lords in 1992 in Pepper (Inspector of Taxes) v. Hart' introduced significant flexibility into the hitherto rigid proscription followed in the English courts, although it did not go as far as the legislative reforms in Australia. …
The Duty Of Good Faith And The Security Of Performance, Howard Hunter
The Duty Of Good Faith And The Security Of Performance, Howard Hunter
Research Collection Yong Pung How School Of Law
John Carter's paper provides a good discussion of many fundamental problems associated with the satisfactory enforcement of contractual obligations. In reviewing the various subtopics of the conference, he posits a scale of 'security' for performance that runs from simple reliance on the promisor's word to that of the chattel or real property mortgage with maximum rights of self-help in the promisee. In this commentary on his paper, I will argue that the greatest security for any promisee remains the word of the promisor and that this is so for reasons beyond those of honour. First, the duty of good faith …
Positivism In The English Law Of Contract, Andrew B.L. Phang
Positivism In The English Law Of Contract, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
While there has been no paucity of theoretical discussion on the law of contract,’ there has, in English law at least, been little clear evidence from the courts themselves which particular jurisprudential approach is favoured.2 This is not surprising, given the rather formal nature of the English legal system.’ Herein, perhaps, lies a clue - that English law in general and its contract law in particular are generally oriented towards so-called ‘black letter law’; or, to be more precise, that the generally favoured conception of law is that of po~itivism.~ Asalready mentioned, however, there has been little express acknowledgement of …
Notes: Termination Of Employment Contracts And Taking Advantage Of One's Wrong, Andrew B.L. Phang
Notes: Termination Of Employment Contracts And Taking Advantage Of One's Wrong, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
The recent decision by Mr John Mowbray QC in Micklefield v SAC Technology Ltd brings into focus the thorny problems inherent within, first, the continuing uncertainty surrounding termination of employment contracts and, secondly, the much more general issue as to the status as well as application of the proposition that a contracting party ought not to be allowed to take advantage of his own wrong. There was a third issue taken in the case with regard to the applicability of the Unfair Contract Terms Act 1977 which will be briefly commented upon.
Commentary On Pitfalls Of Force Majeure Clauses, Howard Hunter
Commentary On Pitfalls Of Force Majeure Clauses, Howard Hunter
Research Collection Yong Pung How School Of Law
Professor Yates has covered in considerable detail the major problem areas in the use of force majeure clauses. His work is admirable in its technical details as well as in its use for the practitioner. I wish to add but a few brief comments about 2 chronic difficulties with the enforcement of force majeure clauses. To some extent these difficulties are common to all cases that involve excuse by way of frustration, impossibility, or commercial impracticability. The first has to do with foreseeability and the second has to do with post-excuse remedies. It has become a truism that a force …
Jurisprudential Oaks From Mythical Acorns: The Hart‐Dworkin Debate Revisited, Andrew B.L. Phang
Jurisprudential Oaks From Mythical Acorns: The Hart‐Dworkin Debate Revisited, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
This article attempts to demonstrate, via the famous Hart-Dworkin debate on the nature and functions of judicial discretion, that substantial jurisprudential disputes as well as theories can, and do, arise from misconceived critiques, whether intended or otherwise. It also seeks to show that, whilst Dworkin's initial critique of Hart was misconceived, his theory of adjudication that arose as a result of responses to his initial views is a positive contribution to learning, although I argue that Dworkin's views are not, in the final analysis, sufficiently persuasive to constitute a radical departure from Hart's own views.
Whither Economic Duress? Reflections On Two Recent Cases, Andrew B.L. Phang
Whither Economic Duress? Reflections On Two Recent Cases, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
From its rather tentative and extremely recent beginnings, I the law relating to economic duress has developed at a relatively rapid pace during the last decade or so. We have had a series of decisions from various courts and jurisdictions* which, collectively at least, affirm the existence of the doctrine in English law. The pronouncements at the highest levels, however, have not purported to be definitive, and, as we shall see, have certainly not aided in a clarification and systematization of the doctrine of economic duress. The two recent decisions, which are the subject of the present comment, have merely …
Exception Clauses And Negligence-The Influence Of Contract On Bailment And Tort, Andrew B.L. Phang
Exception Clauses And Negligence-The Influence Of Contract On Bailment And Tort, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
Judgments at first instance have rarely been the subject of comment.' The recent decision of Steyn J in Singer Co (UK) Ltd v Tees and Hartlepool Port Authority,2 however, merits consideration for at least three reasons. First, it focuses upon important issues in the law of bailment, at least one of which has hitherto only been considered at first instance in any event. Secondly, the decision provokes thought on the much broader issue of the effect of exception clauses upon the general duty of care in tort, in particular whether the reasoning in the bailment context could be extended and …
Measuring The Unjust Enrichment In A Restitution, Howard Hunter
Measuring The Unjust Enrichment In A Restitution, Howard Hunter
Research Collection Yong Pung How School Of Law
Unjust enrichment is a theme common to most restitution cases in the United States. The theory of recovery is based on a justice principle the disgorgement of an unfairly obtained gain. The goal, in general, is to require the defendant to give up his gain rather than to compensate the plaintiff for a loss, as in a tort case, or to substitute damages for an unfulfilled expectancy, as in a contract case. This paper examines some of the issues that surround the measurement of the unjust enrichment and the defendant's liability. There are a number of straightforward rules for the …
Quantum Meruit And Building Contracts: Part I The Quantum Meruit Concept, Howard Hunter, J. W. Carter
Quantum Meruit And Building Contracts: Part I The Quantum Meruit Concept, Howard Hunter, J. W. Carter
Research Collection Yong Pung How School Of Law
The aim of this article is to discuss the restitutionary principles applicable to quantum meruit claims in building contracts. In the first part we consider the concept itself and identify the contexts in which such a claim is pursued. In the second part of the article, to be published in the next issue of the JCL, attention is directed, principally, to one issue, namely whether the contract price constitutes a ceiling on the amount recoverable under a quantum meruit claim following breach by the defendant.
Quantum Meruit And Building Contracts: Part Ii Does The Contract Price Put A Ceiling On A Recovery Via A Quantum Meruit?, Howard Hunter, J. W. Carter
Quantum Meruit And Building Contracts: Part Ii Does The Contract Price Put A Ceiling On A Recovery Via A Quantum Meruit?, Howard Hunter, J. W. Carter
Research Collection Yong Pung How School Of Law
The question posed by the title of this part of the article has been the subject of a substantial amount of commentary by American legal scholars and has been a central issue in a number of cases, almost all of them involving building contracts. The problem is easy to state: P and D have an agreement for P to construct a building for a total consideration of $X. When P is partially finished, D breaches. If the contract price and the value of the work to date roughly coincide, there is usually little problem in determining P's recovery. The standard …
Common Mistake In English Law: The Proposed Merger Of Common Law And Equity, Andrew B.L. Phang
Common Mistake In English Law: The Proposed Merger Of Common Law And Equity, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
Although the law relating to common mistake’ has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature.‘ The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable3 branches of common mistake into one coherent, doctrine.