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Contractual Penalties in Australia and the United Kingdom: History, Theory and Practice

ISBN13: 9781760022143
Published: October 2019
Publisher: The Federation Press
Country of Publication: Australia
Format: Hardback
Price: £145.00

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It is a longstanding and common drafting technique in Australia and England for contracts to contain an agreed remedy in which one party (A) can claim against the other (B) if B fails to fulfil their side of the bargain.

This book aims to provide a comprehensive answer to a vital question that affects consumer, commercial and government contracting: when will a court refuse to enforce A’s right to an agreed remedy because it impermissibly punishes B? In doing so, this book provides readers with:

  • a detailed and accessible guide as to how the penalties doctrine operates in practice, taking account of the growing body of case law following the landmark decisions in Andrews v Australia and New Zealand Banking Group Ltd; Paciocco v Australia and New Zealand Banking Group Ltd; Cavendish Square Holding BV v Makdessi; and ParkingEye Ltd v Beavis;
  • a historical overview of the key developments in the law of penalties from the 14th century to the present day which links historical analysis with modern debates concerning the scope of the penalties doctrine;
  • a clear overview of the potential underlying reasons for the law of penalties in both England and Australia which accounts for the key divergences between the jurisdictions;
  • a comprehensive comparative analysis between the English and Australian penalties doctrines, showing sharp divergences between the approaches adopted in these two jurisdictions notwithstanding that the jurisdictions share a common historical starting point; and
  • a quick reference guide to assist legal practitioners in identifying potentially contentious issues that may arise from the application of the penalties doctrine.
The book also contains a foreword written by the Hon Justice James Edelman (High Court of Australia).

Contract Law, Other Jurisdictions , Australia
Chapter 1 – Introduction

Chapter 2 – History
I. The Hard Law of the Conditional Bond
II. Early Common Law Authorities
III. First Stage of Development c.1480
IV. Second Stage of Development c.1601
V. Third Stage of Development c.1660
VI. Fourth Stage of Development c.1800
VII. Fifth Stage of Development c.1915
VIII. Summary

Chapter 3 – Two Approaches
I. Removing the Breach of Contract Requirement
II. The Australian Security Rights Approach – Legal History
III. The Australian Security Rights Approach – Policy and Morality
IV. Three Objections to the Australian Penalties Doctrine
V. The English Secondary Rights Approach
VI. Summary

Chapter 4 – Other Justifications
I. Economic Efficiency
II. Deterrence
III. Perverse Contractual Incentives
IV. Liberty of Action
V. Risk Calculation and Bargaining Position
VI. Substantive Fairness

Chapter 5 – Engagement
I. Threshold Test at Australian Law
II. Threshold Test at English Law

Chapter 6 – Punishment
I. Recent Developments
II. Seven Principles
III. Justifying the Legitimate Interest Standard

Chapter 7 – Remedies
I. Restatement of the Australian Position
II. Restatement of the English Position
III. Agreed Remedies, Penalties and Potential Limits on Recovery

Chapter 8 – Interplay
I. Does the Australian Penalties Doctrine Consist of a Unified Rule?
II. Relief Against Penalties in the Context of Deposit Clauses
III. Relationship Between Forfeiture and Penalties

Chapter 9 – Conclusions

Chapter 10 – A Codified Guide to the Penalties Doctrine
I. A Restatement of the Australian Penalties Doctrine
II. A Restatement of the English Penalties Doctrine