Contract law update 2022: introduction

It is perhaps surprising that, in 2022, the High Court was asked to consider such basic questions as:

• how does one categorise contractual terms; and
• can a person waive a contractual right?

Even more surprisingly, and notwithstanding the fundamental nature of these questions, there was no consensus in the High Court as to their answer.

Part of the joy and frustration of the common law is that legal issues can be debated for many years without resolution. Regular readers of Allens' contract law update will recognise many issues in this edition: when (if ever) should a duty of utmost good faith be implied into contracts; when should damages be calculated as at the date of breach; and what conduct constitutes a repudiation of a contract?

Even where the rules are agreed – and the rules of construction are (currently) largely settled in Australia – we see different judges reaching different outcomes when the same rules are applied to the same facts. Until our judges are replaced by ChatGPT and its successors, we are likely to continue to see disagreement and uncertainty both on the content of contract law and its application in different scenarios.

Which is, of course, all the more reason to read updates like this one. We hope the enjoyment of reading it outweighs the frustration of doing so.