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CLQ Vol34 No3 Sept-Nov 2020

A contractual oxymoron? The enforcement of the negative stipulation in the context of employment and financial contracts
By Lee Aitken and Eu-Jin Teo
 
This paper considers whether, and if so how, a court of equity will intervene to ‘enforce’ a ‘negative stipulation’ which implicitly arises in every contract in which an express promise is made to perform it in a particular way. As Salmond and Winfield observed long ago, ‘… (A) stipulation which is in form affirmative may be negative in substance. If this is found as a fact to be the true construction, the Court will restrain the doing of an act which infringes the stipulation’.
Thus it is that, ‘although a contractual obligation may be expressed in a positive form, it must necessarily follow that the promisor has, at least by implication, agreed not to do the opposite’. It would follow that ‘every contract between subject and subject involves an obligation, implied if not expressed, that neither party shall do anything to destroy the efficiency of the bargain which he has made’.
 
 
The concept of mistake in Australian contract law
Part 2 of 3
By Jeffrey Goldberger
 
There is little doubt that the subject of mistake in Australian law is both difficult and confusing. It has been described as ‘arcane, uncertain in application, complex and controversial’.
 
 
Constraints on the exercise of contractual powers and discretions
Part 3 of 3
By Jeffrey Goldberger
 
In analysing potential constraints on the exercise of contractual discretions the observations of the English Court of Appeal provide a useful setting.
The purpose of this paper is to review those techniques in light of the most recent case law.
However, the critical starting point is to determine whether there exists in Australian law an overarching doctrine of good faith and whether there is any meaningful difference between good faith and reasonableness.

  • A contractual oxymoron? The enforcement of the negative stipulation in the context of employment and financial contracts
    By Lee Aitken and Eu-Jin Teo
    page 3
  • The concept of mistake in Australian contract law. Part 2 of 3
    By Jeffrey Goldberger
    page 11
  • Constraints on the exercise of contractual powers and discretions. Part 3 of 3
    By Jeffrey Goldberger
    page 38
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    Main File Type pdf
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