This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts.
The second edition fully updates all case and statute law since publication of the first edition in 2014. Several chapters have been extensively revised and updated to incorporate analysis of significant High Court and superior court decisions concerning the construction of contracts, penalties and liquidated damages, and unfair terms. This edition adopts the same chapters and internal format as the first edition so as to maintain easy reader accessibility. The authors have endeavoured to maintain the high standard of legal analysis, extensive referencing and practical relevance favourably commented upon by a reviewer of the first edition in the Australian Business Law Review:
This excellent new work provides substantial practical guidance for both general issues of construction of contracts but more particularly, to issues that arise in relation to the construction of specific clauses frequently encountered in commercial contracts.
Key Features of the New Edition
- Chapter 2 which explains the general principles and approach to contract construction has been considerably revised following the High Court’s 2015 decision in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and subsequent seminal cases, including Simic v New South Wales Land and Housing Corporation (2016), Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017), Victoria v Tatts Group Ltd (2016), WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) and Cherry v Steele-Park (2017). The key impacts of these decisions for contract interpretation and the use of extrinsic evidence are analysed and explained in detail.
- The material in each chapter relating to unfair contract terms has been significantly revised following the amendment of the Australian Consumer Law to prohibit unfair contract terms in small business contracts. Case law since 2014 examining the interpretive approach to unfair terms and application to small business contracts has been incorporated.
- Chapter 4 on liquidated damages and penalties has been extensively rewritten to take account of the High Court decision in Paciocco v Australia and New Zealand Banking Group (2016) with analysis of further case law and commentaries that have applied the principles in Andrews v Australia and New Zealand Banking Group Limited.
- The commentary on consumer guarantees has been updated to incorporate an analysis of the Federal Court decision in Valve Corporation v Australian Competition and Consumer Commission (2017) and a more extensive analysis of proportionate liability.
- Chapter 12 on notices has been extensively revised particularly taking into account the increasing body of case law about the sending and receipt of notices by electronic communication.
Table of Cases
Table of Statutes
1. Contracts in Contemporary Commercial Dealings
2. General Principles for Construction of Contracts
4. Liquidated Damages Clauses
5. Exclusion and Limitation of Liability Clauses
6. Entire Agreement Clauses
7. Passing of Risk in Real Property Transactions
8. Force Majeure
9. Contingent Conditions
10. Time Provisions
11. Confidentiality Clauses
12. Notice Provisions
13. Further Assurance and Cooperation
19. Dispute Resolution Clauses
20. Governing Law and Jurisdiction Clauses
It is a comprehensive yet highly readable work with clear referencing suitable for any practitioner (or student). The authors have achieved their objective of providing a clear analysis of a broad range of common clauses (in various forms). It has a visible place on my bookshelf, readily available for regular use.
Victor Hamit, InPrint, Law Institute Journal Victoria, March 2019
Reviews of previous edition:
A considerable amount of the work of commercial courts these days is occupied by construing contracts made between business people. Part of the reason for this is that many business people give what they contemptuously call “the paper work” very low priority and assume that all parties to a transaction will share the same view of the transaction as themselves. The work of the courts is not made easier by the problem that our High Court and the English commercial courts have adopted significantly different approaches to the construction of commercial contracts.
This book aims to assist with these problems. However, it does so in a different way to the approach taken by Lewison and Hughes in their seminal text, The Interpretation of Contracts in Australia (Lawbook Co, 2012). Only one chapter of the present book focuses on how the basic approach to the construction of commercial contracts differs from the approach to “ordinary” contracts. However, that treatment is a good summary of the current position, though it lacks the depth that the citation of a wider selection of utterances from the authorities would have given it.
Apart from the introductory chapter, the other chapters deal with particular aspects of commercial contracts. Thus, Ch 6 deals with entire agreement clauses in 16 pages, Ch 9 deals with contingent conditions in 20 pages and Ch 10, with time provisions in 26 pages. Other chapters are “Notice Provisions”, “Novation”, “Nomination”, “Guarantees”, “Indemnities”, and “Dispute Resolution Clauses”. In each of these chapters, particular problems of construction are addressed, including how the courts have approached standard clauses such as “subject to finance”.
It is good that the authors have taken a different approach to the subject as their book is not a duplication of existing texts, but rather is a useful complementary work to them.
Peter W Young AO, Australian Law Journal, August 2015
This is an excellent reference book for all lawyers who work in the drafting of contracts or in relation to contractual disputes.
The practical experience of the authors’ is evident in the way the book is written. The content is structured in a very logical way. … The book is useful for any practitioner. It is in plain English. It gives very practical advice.
This book will live in the shelf next to my desk as a reference in relation to the construction of all contracts that I need to draft or consider. It is very clear, precise and useful. Read full review…
<p class=”book-review-credit”>Uwe Boettcher, Ethos, ACT Law Society, December 2014
This excellent new work provides substantial practical guidance for both general issues of construction of contracts but more particularly, to issues that arise in relation to the construction of specific clauses frequently encountered in commercial contracts. The Construction and Performance of Commercial Contracts is recommended to all those involved in drafting, implementing and enforcing commercial contracts in Australia. Read full review…
Peter Lithgow, Australian Business Law Review, October 2014