2026

Contractual deepfakes: Can Large Language Models generate contracts?
Eliza Mik, ‘Contractual deepfakes: Can Large Language Models generate contracts?’ (2026) 40 Journal of Contract Law 71

Double operation clauses and the limits of ratification: Shao v Crown Global Capital Pty Ltd (in prov liq)
Hugo Wilesmith, ‘Double operation clauses and the limits of ratification: Shao v Crown Global Capital Pty Ltd (in prov liq)' [2025] HCA 43’ (2026) 40 Journal of Contract Law 140

Future Performance and Proof in Contract Damages
Michael Dimarco and David Winterton, ‘Future Performance and Proof in Contract Damages' (2026) 48 Sydney Law Review

The disjunctive theory of contractual obligations vs contract law
Matthew Beamish, ‘The disjunctive theory of contractual obligations vs contract law’ (2026) 40 Journal of Contract Law 107

The Test for Lawful But Illegitimate Pressure
William Garske, ‘The Test for Lawful But Illegitimate Pressure’ (2026) 49(1) University of New South Wales Law Journal 165

The undue influence of AI assistants, agents and companions
Jeannie Marie Paterson and Elise Bant, ‘The undue influence of AI assistants, agents and companions’ (2026) 19 Journal of Equity 107

Unjust Enrichment in Australia 2023-2025
Kit Barker and Anna Kretowicz, ‘Unjust Enrichment in Australia 2023-2025’ [2026] Lloyds Maritime and Commercial Law Quarterly 117

2025

Contract formation, battle of the forms and the ‘least cost avoider’ principle
Moshood Abdussalam and Shania Amolik, ‘Contract formation, battle of the forms and the ‘least cost avoider’ principle’ (2005) 40(1) Journal of Contract Law 44

Repudiation and good faith misinterpretation (case note)
Ryan Catterwell, ‘Repudiation and good faith misinterpretation: C H Leaman Investments Pty Ltd v Tuesday Enterprises Pty Ltd [2024] WASCA 142’ (2025) 39 Journal of Contract Law 191

Reasons and remoteness: Elisha v Vision Australia (case note)
Timothy Pilkington, ‘Reasons and remoteness: Elisha v Vision Australia Ltd [2024] HCA 50’ (2025) 39 Journal of Contract Law 196

Why consideration exists and the requested past consideration rule explained (case note)
NA Tiverios, ‘Why consideration exists and the requested past consideration rule explained: Rose v Manno Kingsway Pty Ltd (as trustee for the Manno Kingsway Unit Trust) [2025] NSWCA 23’ (2025) 40 Journal of Contract Law 61

Better forgiveness than permission’: The application of the principle in Treloar v Bigge to commercial contracts
Seung Chan Rhee, ‘‘Better forgiveness than permission’: The application of the principle in Treloar v Bigge to commercial contracts’ (2025) 39 Journal of Contract Law 166

2024

Interpreting contracts in the age of the emoji
Mark Giancaspro, ‘Interpreting contracts in the age of the emoji’ (2024) 39 Journal of Contract Law 93

A ‘narrow doctrine’ of unconscionable conduct in Australia? The Amadio principle and the Singaporean perspective on unconscionable conduct
Dilan Thampapillai, ‘A ‘narrow doctrine’ of unconscionable conduct in Australia? The Amadio principle and the Singaporean perspective on unconscionable conduct’ (2024) 39 Journal of Contract Law 71

Contract Law, Form Flexibility and the Importance of Legal Reasoning
Lutz-Christian Wolff, ‘Contract Law, Form Flexibility and the Importance of Legal Reasoning’ (2024) 39 Journal of Contract Law 117

2023

Co-operation and Prevention in Contract Law
Ryan Catterwell, ‘Co-operation and Prevention in Contract Law’ (2023) 47(1) Melbourne University Law Review 114

2022

Kept in suspense: Supervening illegality in contract law and the High Court appeal in 'Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd'
Harrison Simons, ‘Kept in suspense: Supervening illegality in contract law and the High Court appeal in 'Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd' (2022) 44(4) Sydney Law Review 605-618

Renegotiation in the Real World: A Study of Australian Small to Medium-Sized Enterprises, Contract Variation, and the Law
Mark Giancaspro, ‘Renegotiation in the Real World: A Study of Australian Small to Medium-Sized Enterprises, Contract Variation, and the Law‘ (2022) 41(3) University of Queensland Law Journal 299-325.

2021

The Role of Precedent in the Construction and Implication of Terms in Contracts
J W Carter, John Eldridge and Elisabeth Peden, ‘The Role of Precedent in the Construction and Implication of Terms in Contracts’ (2021) 37 Journal of Contract Law 1

Unintended Acceptance of Repudiatory Breach and Loss of Bargain Damages
Qiao Liu, ‘Unintended Acceptance of Repudiatory Breach and Loss of Bargain Damages’ (2021) 37 Journal of Contract Law 49

The Continuing Confusion and Uncertainty over the Relevance of Actual Mutual Intention in Contract Interpretation
David McLauchlan, ‘The Continuing Confusion and Uncertainty over the Relevance of Actual Mutual Intention in Contract Interpretation’ (2021) 37 Journal of Contract Law 25

2020

Building law: ‘Mann v Paterson Constructions Pty Ltd’: The end of the rescission fallacy
Travis Shueard, Seamus Brand, ‘Building law: ‘Mann v Paterson Constructions Pty Ltd’: The end of the rescission fallacy’ (2020) 42(2) Bulletin (Law Society of South Australia) 30-31

‘Plain Sailing’?: Damages for Distress under the ACL and the Performance Interest in Contract
Elise Bant, Katy Barnett and Jeannie Marie Paterson, ‘‘Plain Sailing’?: Damages for Distress under the ACL and the Performance Interest in Contract’ (2020) 36 Journal of Contract Law 272

Testing the boundaries of the consideration doctrine: Can you contract to buy and sell a ghost?
Mark Giancaspro, ‘Testing the boundaries of the consideration doctrine: Can you contract to buy and sell a ghost?’ (June 2020) 45(2) Alternative Law Journal 107-113

2019

Should specifically deterrent or punitive remedies be made available to victims of misleading conduct under the Australian Consumer Law?
Elise Bant and Jeannie Marie Paterson, 'Should specifically deterrent or punitive remedies be made available to victims of misleading conduct under the Australian Consumer Law?' (2019) 25(2) Torts Law Journal 99

➤ Unjust Enrichment in Australia: What Is(n’t) It? Implications for Legal Reasoning and Practice
Kit Barker, ‘Unjust Enrichment in Australia: What Is(n’t) It? Implications for Legal Reasoning and Practice’ (2019) 43(3) Melbourne University Law Review 903

The undue influence of 'non-Australian' undue influence law on Australian undue influence law: farewell Johnson v Buttress? Part II
Rick Bigwood, 'The undue influence of 'non-Australian' undue influence law on Australian undue influence law: farewell Johnson v Buttress? Part II' (2019) 35(3) Journal of Contract Law 187

➤ Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd
John Eldridge and Timothy Pilkington, ‘Discharged Contracts and Quantum Meruit: Mann v Paterson Constructions Pty Ltd’ (2019) 41(2) Sydney Law Review 255

The 'Prima Facie Expectation Relief' Approach in the Australian Law of Proprietary Estoppel
Ying Khai Liew, 'The 'Prima Facie Expectation Relief' Approach in the Australian Law of Proprietary Estoppel' (2019) 39(1) Oxford Journal of Legal Studies 183-208

Penalties after Paciocoo - the Enigma of 'Legitimate Interests'?
Elisabeth Peden, 'Penalties after Paciocoo - the Enigma of 'Legitimate Interests'?' 35(3) Journal of Contract Law 263

“More Than a Feeling”: Finding Statutory Unconscionable Conduct
Michelle Sharpe, ‘“More Than a Feeling”: Finding Statutory Unconscionable Conduct’ (2019) 27 AJCCL 108

Claims for the value of the lost contractual performance
David Winterton, ‘Claims for the value of the lost contractual performance’ (2019) 45(1) University of Western Australia Law Review 75-103

2018

➤ Teaching contract vitiation in Australia: New challenges in subject design
Rick Bigwood and Rob Mullins, 'Teaching contract vitiation in Australia: New challenges in subject design' (2018) 30(2) Bond Law Review 185-216

The undue influence of 'non-Australian' undue influence law on Australian undue influence law: farewell Johnson v Buttress? Part 1
Rick Bigwood, 'The undue influence of 'non-Australian' undue influence law on Australian undue influence law: farewell Johnson v Buttress? Part 1' (2018) 35(1-2) Journal of Contract Law 56

➤ Construction of contracts: the ambiguity gateway and the current state of the law
Maha Chaar, 'Construction of contracts: the ambiguity gateway and the current state of the law' (2018) 44(1) University of Western Australia Law Review 65

From unconscionability to unfairness: a critique of Hong Kong's unconscionable contracts ordinance with Australian developments
May Fong Cheong and Kendy Ding, 'From unconscionability to unfairness: a critique of Hong Kong's unconscionable contracts ordinance with Australian developments' (2018) 35(1-2) Journal of Contract Law

Consumer guarantees and the doctrine of half-truth
Editorial, 'Consumer guarantees and the doctrine of half-truth' (2018) 26(2) Australian Journal of Competition and Consumer Law 95

Contract codification and 'certainty'
John Eldridge, 'Contract codification and 'certainty'' (2018) 35(1-2) Journal of Contract Law

➤ The Proposed Australian Consumer Data Right: A European Comparison
Sasmson Yoseph Esayas and Angela Daly, 'The Proposed Australian Consumer Data Right: A European Comparison' (2018) 3 European Competition and Regulatory Law Review 1-15 (pre-print version)

Is the CISG slowly becoming part of the common law?
Howard Hunter, 'Is the CISG slowly becoming part of the common law?' (2018) 35(1-2) Journal of Contract Law

Disagreement over the illegality defence
Alexander Loke, 'Disagreement over the illegality defence' (2018) 35(1-2) Journal of Contract Law

➤ Contracts against Public Policy: Contracts for Meretricious Sexual Services
Angus Macauley, Contracts against Public Policy: Contracts for Meretricious Sexual Services (2018) 40(4) Sydney Law Review 527

Will emerging information technologies outpace consumer protection law? — The case of digital consumer manipulation
Kayleen Manwaring, 'Will emerging information technologies outpace consumer protection law? — The case of digital consumer manipulation' (2018) 26 CCLJ 141

Contract interpretation and deleted words: a not so pleasant diversity of authority
David McLauchlan, 'Contract interpretation and deleted words: a not so pleasant diversity of authority' (2018) 35(1-2) Journal of Contract Law

Can a Big Business Avail Itself of the Unfair Contract Term Provisions in the Australian Consumer Law?
Peter Sise, 'Can a Big Business Avail Itself of the Unfair Contract Term Provisions in the Australian Consumer Law?' (2019) 26 AJCCL 276

Consumer protection, modern regulation, paternalism and the nanny state: Understanding the legitimacy challenge
Eric L Windholz, 'Consumer protection, modern regulation, paternalism and the nanny state: Understanding the legitimacy challenge' (2018) 26 CCLJ 182

2017

Apple iOS Updates Cause ACCC Service Headache, Overseas Camera Purchase Not a Pretty PICTURE, and Flimsy eBay Sheds
Thomas Cadd, 'Apple iOS Updates Cause ACCC Service Headache, Overseas Camera Purchase Not a Pretty PICTURE, and Flimsy eBay Sheds' (2017) 25(3) Australian Journal of Competition and Consumer Law 213

Proving Misleading or Deceptive Conduct: Challenges Posed by the Internet
Adrian Coorey, 'Proving Misleading or Deceptive Conduct: Challenges Posed by the Internet' (2017) 25(2) Australian Journal of Competition and Consumer Law 97

The Law of Penalties and the Question of Breach
Anthony Gray, 'The Law of Penalties and the Question of Breach' (2017) 45 ABLR 8

➤Online shopping, misleading advertising and consumer protection
Kanchana Kariyawasam & Shaun Wigley, 'Online shopping, misleading advertising and consumer protection' (2017) 26(2) Information & Communications Technology Law 73-89

Assessment of Contractual Penalties: Dunlop Deflated
J W Carter, 'Assessment of Contractual Penalties: Dunlop Deflated' (2017) 34 JCL 4

➤ When Not All Sellers Are Traders: Re-Evaluating the Scope of Consumer Protection Legislation in the Modern Marketplace
Kate Tokeley, 'When Not All Sellers Are Traders: Re-Evaluating the Scope of Consumer Protection Legislation in the Modern Marketplace' [2017] SydLawRw 3; (2017) 39(1) Sydney Law Review 59

2016

➤  What's in a Name? Software, Digital Products and the Sale of Goods
Ben Hayward, 'What's in a Name? Software, Digital Products and the Sale of Goods' (2016) 38 Sydney Law Review 441

➤ The admissibility and use of evidence of prior negotiations in modern contractual negotiations
Caitlin Moudtaka, 'The admissibility and use of evidence of prior negotiations in modern contractual negotiations' (2016) 41(1) The University of Western Australia Law Review 203

➤ Businesses beware. When does the Australian Consumer Law apply?
James North and Richard Flitcroft, 'Businesses beware. When does the Australian Consumer Law apply?' (June 2016) 86(5) Governance Directions 306-309

➤ The Limits of Interpretation in the Law of Contract
Andrew Robertson, ‘The Limits of Interpretation in the Law of Contract’ (2016) 47 Victoria University of Wellington Law Review 191-207

Abstract: In the law of contract questions of risk allocation properly turn, where possible, on interpretation of the agreement. This essay will explore the limits of that approach. It will do so by considering two doctrines that lie at the boundaries of contract interpretation: the implication of terms in fact and the remoteness principle. Both doctrines have been commonly understood as exercises in gap filling, but in two influential judgments Lord Hoffmann sought to recast them as interpretative principles (Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 and Transfield Shipping Inc v Mercator Shipping Inc (‘The Achilleas’) [2009] 1 AC 61). It will be argued that the implication of terms in fact can properly be regarded as an exercise in interpretation, but the same cannot be said of the remoteness doctrine. In their embrace of an interpretative approach to remoteness and rejection of an interpretative approach to implication, the English courts have backed the wrong horse.

2015

➤ Consumer guarantees - lessons to be learnt from afar
L D Griggs, A Freilich and N Messel, 'Consumer guarantees - lessons to be learnt from afar' (2015) 23 Australian Journal of Competition and Consumer Law 36-44.

2014

➤ Issues of Principle in Assessing Contract Damages
John Carter, Wayne Benjamin Courtney and Greg Tolhurst, ‘Issues of Principle in Assessing Contract Damages’ (2014) 31(3) Journal of Contract Law 171-205

Abstract: The facts in Clark v Macourt are deceptively simple. A sale of a business (a medical fertility practice) includes frozen sperm as part of the transferred assets. No part of the sale price is apportioned distinctly to the sperm. It turns out that much of the sperm is unusable because the associated documentation maintained and furnished by the vendor is inadequate. This constitutes a breach of a warranty in the contract of sale. The purchaser incurs significant costs in acquiring replacement sperm from overseas. (The total replacement cost is a little over 3 times the price paid for the entire business). The purchaser begins, and is expected to continue, to recoup that expenditure from patients to whom the sperm is subsequently supplied in connection with fertility services. The purchaser claims as damages the total replacement cost.

Clark v Macourt was decided by a majority of the High Court of Australia as a straightforward application of the rule in Robinson v Harman. On analysis, however, judgment glosses over several important issues of principle in the assessment of contract damages raised by the (unusual) facts. In particular, although the contract was for the sale of a business, the majority chose to determine damages by applying the prima facie measure for breach of a warranty of quality in a contract for the sale of goods to one asset transferred, rather than the business as a whole. This involved upholding an assessment based on questionable evidence of market value, and resulted in an award that was contrary to the intention of the parties and inconsistent with the evidence of mitigation by the purchaser. The majority seems also to have placed more emphasis on the ability of the claimant (rather than the court) to choose the basis for assessment than allowed for by previous decisions of the court. In this article we explain why the dissenting judgment of Gageler J should be preferred and why the majority should have come to different conclusions on the issues of principle.

➤ Implied Terms: What is the Role of Construction?
Wayne Courtney and John Carter, ‘Implied Terms: What is the Role of Construction?’ (2014) 31(2) Journal of Contract Law 151

Abstract: In Attorney General of Belize v Belize Telecom Ltd, the Privy Council reconceptualised the process of implying terms ‘in fact’ into contracts. Until then, the conventional understanding had been that factual implication was a matter of contract doctrine. A term was implied when it satisfied certain well-known tests such as the business efficacy test or the ‘officious bystander’ test. In Belize, factual implication was said to be a matter of elucidating the meaning of the contract: that is, it is merely part of the ordinary process of construction. In this article, we examine the relationship between ‘implication’ and ‘construction’, and between ‘construction’ and contract doctrine. We argue that the reasoning in Belize did not properly distinguish these concepts. The process of factual implication is distinctive; it cannot be treated simply as a matter of meaning, to be determined by ordinary construction principles.

The ambiguity of ‘ambiguity’ in the construction of contracts
The Hon Kevin Lindgren AM QC, ‘The ambiguity of ‘ambiguity’ in the construction of contracts’ (2014) 38(2) Australian Bar Review 153

➤ Three Models of Promissory Estoppel
Andrew Robertson, ‘Three Models of Promissory Estoppel’ (2013) 7 Journal of Equity 226-249

Abstract: The decision in Waltons Stores (Interstate) Ltd v Maher has been widely celebrated for liberalising the doctrine of promissory estoppel in Australian law. There has, however, been considerable disagreement as to the nature and extent of that liberalisation and, on its 25th anniversary, opinions as to the effect of the decision are more sharply divided than ever. This article analyses the three different models of promissory estoppel which have been articulated and applied in Australian law since Waltons Stores v Maher: the restraint on rights model (in which promissory estoppel can operate only as a restraint on a legal right), the legal relationship model (in which promissory estoppel can arise from a promise to enter into a particular legal relationship) and the independent source of rights model (in which promissory estoppel operates as an independent source of rights, and can arise from a promise that the promisor will behave in a particular way). All three models find both support and opposition in the post-Waltons case law. It will be argued that, as a matter of consistency and justice, the independent source of rights model is to be preferred. There are no compelling reasons of justice or policy to confine the doctrine in the manner required by the restraint on rights model or the legal relationship model.

2013

➤ Google v ACCC: The High Court considers misleading and deceptive conduct
Rosanne Sands, 'Google v ACCC: The High Court considers misleading and deceptive conduct' [2013] UNDAULawRw 7; (2013) 15 The University of Notre Dame Australia Law Review 152

➤ Rethinking Election: A General Theory
Qiau Liu, ‘Rethinking Election: A General Theory’ (2013) 35 Sydney Law Review 599

➤ Striking the modern balance between freedom of contract and consumer rights
Justice Steven Rares, 'Striking the modern balance between freedom of contract and consumer rights' [2013] FedJSchol 21

The limits to estoppels
Ben McFarlane, ‘The limits to estoppels’ (2013) 7 Journal of Equity 250

The Relevance of Breach to the Applicability of the Rule against Penalties
Sirko Harder, ‘The Relevance of Breach to the Applicability of the Rule against Penalties’ (2013) 30 Journal of Contract Law 52 (discussed in the context of Andrews v ANZ)

The Uncertain Basis of the Postal Acceptance Rule?
David McLauchlan, ‘The Uncertain Basis of the Postal Acceptance Rule?’ (2013) 30 Journal of Contract Law 33

Three models of promissory estoppel
Andrew Robertson, 'Three models of promissory estoppel' (2013) 7 Journal of Equity 226

Unifying estoppel doctrine: The argument for heresy
Michael Bryan, ‘Unifying estoppel doctrine: The argument for heresy’ (2013) 7 Journal of Equity 209

Waltons v Maher: History, unconscientiousness and remedy — the ‘minimum equity’
J C Campbell, ‘Waltons v Maher: History, unconscientiousness and remedy — the ‘minimum equity’ (2013) 7 Journal of Equity 171

2012

➤ Companies Take Heed: The Misleading or Deceptive Conduct Provisions Are Gaining Prominence
Gill North (2012) 30 Company and Securities Law Journal 342

➤ The Government's Proposed "Review of Australian Contract Law": A Preliminary Positive Response
Luke Nottage, 'The Government's Proposed "Review of Australain Contract Law": A Preliminary Positive Response' (2012, Sydney Law School Research Paper No 12/49)

The International Harmonisation of Australian Contract Law
Donald Robertson (2012) 29 Journal of Contract Law 1

➤ Section 18 of the Australian Consumer Law and Environmental Issues
Michael Adams and Marine Nehme, 'Section 18 of the Australian Consumer Law and Environmental Issues' [2012] BondLawRw 2; (2012) 24(1) Bond Law Review

What’s Wrong with the Australian Law of Contract?
Andrew Stewart (2012) 29 Journal of Contract Law 74

➤ Review of Australian Contract Law
Attorney General's Department, 'Improving Australia's law and justice framework: A Discussion Paper to explore the scope for reforming Australian Contract Law (22 March 2012)

This paper's purpose is to stimulate discussion among business, consumers, legal practitioners, academics and other stakeholders about the successes and shortcomings of Australian contract law, including in the digital economy.

The paper considers whether Australian contact law could be reformed to:

• enhance accessibility, certainty and simplicity

• set standards of conduct

• better support innovation and participation in the digital economy

• better meet of the evolving needs of businesses particularly small and medium businesses

• make the law more elastic to promote long-term relationships, and

• harmonise and internationalise contract law.

2011

Agreements, Common Mistake and the Purpose of Contract
Andrew Tettenborn (2012) 22 Journal of Contract Law 91

➤ Circumscribing election: reflections on the taxonomization and mental componentry of affirmation of a contract by election
Rick Bigwood (2011) 30(2) University of Queensland Law Journal 235

2010

➤ The Enforceability of Agreements to Negotiate in Good Faith
Jack O'Connor [2010] UTasLawRw 8; (2010) 29(2) University of Tasmania Law Review 177

➤ Good faith: Where are We At?
The Hon Marilyn Warren AC (2010) 34 Melbourne University Law Review 344

Pre-2010

2009

➤ The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts
Jeannie Paterson, 'The Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts' (2009) 33(3) Melbourne University Law Review

➤ Contract Interpretation: What Is It About?
David McLauchlan [2009] SydLawRw 1; (2009) 31(1) Sydney Law Review 5

2008

➤ Codifying Australia's Contract Law - Time for a Stocktake in the Common Law Factory
Dan Svantesson, 'Codifying Australia's Contract Law - Time for a Stocktake in the Common Law Factory' (2008) 20(2) Bond Law Review (article 5)

2007

➤ Laying the Mark to Port and Starboard: Salvage Under Duress and Economic Duress at Contract Law
Olivia Lennox-King [2007] ANZMarLawJl 5; (2007) 21(1) Australian and New Zealand Maritime Law Journal 32

2006

➤ Contract formation, contract interpretation, and subsequent conduct
D W McLauchlan, 'Contract formation, contract interpretation, and subsequent conduct' (2006) 25(1) The University of Queensland Law Journal 77

➤ Implied Obligations of Good Faith and Reasonableness in the Performance of Contracts: Old Wine in New Bottles?
Geoffrey Kuehne [2006] UWALawRw 4; (2006) 33(1) University of Western Australia Law Review 63

➤ The Implied Duty of Good Faith in Australian Contract Law
Justice Robert McDougall [2006] AUConstrLawNlr 36; (2006) 108 Australian Construction Law Newsletter 28

➤ Misleading and deceptive conduct: Immunising the intermediary - the conduit defence
Peter Gillies (2006) 14 Trade Practices Law Journal 208

➤ Structuring the application of the equitable doctrines of undue influence and unconscionable dealing
Andrew N Sykes (2006) 13(1) E Law Murdoch University Electronic Journal of Law 46-57

2005

➤ Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd Curbing Unconscionability: Berbatis in the High Court of Australia
Rick Bigwood, '' (2004) 28(1) Melbourne University Law Review 203

➤ Impossible performance or excused performance? Common mistake and frustration after Great Peace Shipping
Michele De Gregorio (2005) 16 King's College Law Journal 69 (subscription required)

➤ Quantum Meruit for Building Services Under Unenforceable Contract
Chris Fenwick [2005] AUConstrLawNlr 17; (2005) 101 Australian Construction Law Newsletter 6

➤ Good Faith and Fair Dealing: Australia
J Finn (2005) 11 New Zealand Business Law Quarterly 378

➤ When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and the Demise of Unconscionability
Elisabeth Peden, ‘When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and the Demise of Unconscionability’ (2005) 21 Journal of Contract Law 226

Abstract: Equity is that part of law that moderates the harshness of the common law; equity is concerned with fairness, justice, and conscience. Persons aggrieved because of unconscionable transactions have therefore been able to seek assistance from equity in having the transactions set aside. However, it is only in the most abhorrent of situations that equity will do so. It therefore comes as a surprise that courts are prepared to develop the notion of 'good faith' to incorporate the standard of 'reasonableness' that takes this common law concept even beyond the scope of the equitable doctrines. This paper considers the rise of the notion of good faith meaning reasonableness, and how this sits uncomfortably with the existing equitable notion of unconscionability at common law and in legislation.

➤ Incorporation of Terms by Signature: L’Estrange Rules!
Elisabeth Peden and John Carter, ‘Incorporation of Terms by Signature: L’Estrange Rules!’ (2005) 21(1) Journal of Contract Law 96-106

Abstract: The decision in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd gave the High Court the opportunity to correct some misunderstandings about incorporation of terms into contracts by signature and in so doing to confirm that L'Estrange v F Graucob Ltd remains good law in Australia. The High Court further stressed the importance of the objective approach of contract law to formation and interpretation. It also found yet another opportunity to comment on the use of 'surrounding circumstances' as an aid to the interpretation of contracts, a subject on which it has trod several different paths in recent times.

➤ The Limits of Voluntariness in Contract
Andrew Robertson [2005] MULR 5; 29 Melbourne University Law Review 218

Abstract: Contractual obligations are routinely characterised in the contract literature as voluntary or voluntarily assumed. This article examines the major challenges to the voluntaristic conception of contract. An obligation can be regarded as voluntary only if it is meaningfully understood, and the decision to assume it is intentional and substantially unconstrained. Many contractual obligations arise from standard form terms, which are commonly unread, frequently misunderstood, and routinely unavoidable due to the lack of available alternatives. In some circumstances, the obligations and curtailments of rights arising from unread standard form terms can be regarded as voluntary, but in others they cannot. In exceptional cases, the objective approaches to formation and interpretation result in parties becoming subject to obligations that they cannot be said to have voluntarily assumed. The objective approach to the incorporation of terms, particularly unsigned terms, leaves even greater scope for parties to become subject to obligations that cannot be said to have been voluntarily assumed. Obligations routinely arise from the default rules of contract law, which appear not to be well understood, even in the commercial context, and are often difficult to avoid. Recent claims that these obligations inhere in the agreement itself have not been made out. Contractual obligations and curtailments of rights are routinely fashioned by one contracting party in the ignorance of the other, or by the state in the ignorance of both, and are often practically unavoidable for one or both parties.

➤ Revisiting the Rule in L'Estrange v F Graucob Ltd
Phillip Sharp [2005] BondLawRw 17; (2005) 17(2) Bond Law Review 204

2003

➤ ACCC v Berbatis Holdings (2003) 197 ALR 153
Nicole Dean, 'ACCC v Berbatis Holdings (2003) 197 ALR 153' (2004) 26(2) Sydney Law Review 255

➤ Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd and Others (2003) 197 ALR 153; [2003] HCA 18
Jasmine Campbell (2003) 5 UNDALR 101

➤ Good Faith in Australian Contract Law
John Carter and Elisabeth Peden, ‘Good Faith in Australian Contract Law’ (2003) 19 Journal of Contract Law 156

Abstract: This article seeks to address and arrest the recent judicial trend to reduce 'good faith' in contract law to an implied term with a vague and inappropriate meaning. The authors argue that good faith is inherent in all common law contract principles, and that an attempt to imply an independent term requiring good faith is at once unnecessary and a retrograde step. The article further discusses the meaning of 'good faith', which requires a sophistocated understanding of the meaning of 'honesty'. Further, the problems with defining 'good faith' as including 'reasonableness' and 'unconscionability' are outlined.

➤ The Admissibility of Evidence of Surrounding Circumstances in the Interpretation of Contracts
Francis Tiernan [2003] AUConstrLawNlr 51; (2003) 92 Australian Construction Law Newsletter 14

➤ Good Faith: Is It a Contractual Obligation?
Bruno Zeller [2003] BondLawRw 30; (2003) 15(2) Bond Law Review 217

2002

➤ Good faith in Australian contract law[PDF]
J W Carter and Elisabeth Peden [Jan/Feb 2004] Australian Construction Law Newsletter 6

➤ Contract And The Family: Whither Intention
Maria Keyes and Kylie Burns [2002] MULR 30; (2002) 26 Melbourne University Law Review 577

➤ Implied duty of good faith: A comment
Rick Ladbury (Australian Mining and Petroleum Law Association (AMPLA) Yearbook 2002) pages 22-48; [2002] AUMPLawAYbk 4

2001

Contract by Offer and Acceptance: Still the Law?
Mr Justice PW Young (2001) 75(7) ALJ 419
[Discussion of decision in Brambles Holdings v Bathurst City Council]

2000

➤ Breach of Contract and Misleading Conduct: A Storm in A Teacup?
Jason Cornwall-Jones (2000) 24(2) Melbourne University Law Review

1998

➤ Electronic Signatures: Understand the Past to Develop the Future
Adrian McCullagh, Peter Little and William Caelli [1998] UNSWLawJl 56; (1998) 21(2) University of New South Wales Law Journal 452

➤ Rescission of an Executed Contract at Common Law for an Innocent Misrepresentation
Peter McFarlane and Lindy Willmott [1998] BondLawRw 4; (1998) 10(1) Bond Law Review 58

1997

➤ Taming the unruly horse! Contractual illegality and public policy: Fitzgerald v F J Leonhardt Pty Ltd
Jay Forder, ‘Taming the unruly horse! Contractual illegality and public policy: Fitzgerald v F J Leonhardt Pty Ltd’ [1997] High Court Review 12

Breach of Contract and Misleading or Deceptive Conduct
Skapinker D and Carter J W (1997) 113 LQR 294

1994

Good Faith and Fairness in Commercial Contract Law
Rt Hon Lord Justice Staughton, (1994) 7 Journal of Contract Law 193

1993

Contract and its Relationship with Equitable Standards and the Doctrine of Good Faith
Sir Anthony Mason, The Cambridge Lectures, 1993 (8 July 1993)

1990

➤ Concrete Constructions (NSW) Pty Ltd v Nelson
Philip Solomon, (1990) 17 Melbourne University Law Review 759

1989

The Hegemony of Misleading or Deceptive Conduct in Contract, Tort and Restitution
Philip H Clarke (1989) 5 Australian Bar Review 109

➤ Contract, Restitution and Promissory Estoppel
John Carter [1989] UNSWLawJl 3; (1989) 12(1) University of New South Wales Law Journal 30

➤ A Guide to a Comparison of Australian and United States Contract Law
The Hon Justice L J Priestley [1989] UNSWLawJl 2; (1989) 12(1) University of New South Wales Law Journal 4

1986

The Implied Contract Theory of Quasi-Contract: Civilian Opinion Current in the Century Before Blackstone
Birks and McLeod (1986) 6 Oxford Journal of Legal Studies 46

1985

➤ Freeze, Flight and Fight in High Court Contract Judgments
M P Ellinghaus, 'Freeze, Flight and Fight in High Court Contract Judgments' (1985) 10(2) Adelaide Law Review 184

1977

➤ Illusory, Vague and Uncertain Contractual Terms
HK Lucke, 'Illusory, Vague and Uncertain Contractual Terms' (1977-1978) 6(1) Adelaide Law Review 1

1976

The Inconsistent Collateral Contract
David W McLauchlan, 'The Inconsistent Collateral Contract' (1976-1977) 3 Dalhousie LJ 136

1974

➤ Wigan v Edwards (Contract)
Janet N Walker [1974] MelbULawRw 9; (1974) 9(3) Melbourne University Law Review 537

1973

Signature, Consent and the Rule in L'Estrange v Graucob
Spencer (1973) Cambridge Law Journal 104