Contractual penalties in Australia and the United Kingdom : history, theory and practice / by Nicholas A. Tiverios.

Alexandria, N.S.W. : The Federation Press, 2019

1st edition

89408

Contract law.

Penalties, contractual -- Australia.

Penalties, contractual -- Great Britain.

Forfeiture -- Australia.

Forfeiture -- Great Britain.

1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. 1. Introduction

2. I. II. III. IV. V. VI. VII. VIII. Summary

3. I. II. III. IV. V. VI. 4. I. II. III. IV. V. VI. 5. I. II. 6. I. II. III. 7. I. II. III. 8. I. II. III. 9. Conclusions

10. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine. History

The hard law of the conditional bond

Early common law authorities

First Stage of development c.1480: the prevention of double recovery on a simple bond

Second Stage of development c.1601: the equitable restraint of common law rights in cases of accident, mistake, hardship, trifling and fraus

Third Stage of development c.1660: security of collateral rights and the foundations of the modern law

Fourth Stage of development c.1800: the parties' purported intentions

Fifth Stage of development: the decline of the intention-based approach in the early 20th Century and the decision in Dunlop Pneumatic Tyre Co

Two approaches

Removing the breach of contract requirement and the decision in Andrews

The Australian security rights approach: legal history

The Australian security rights approach: policy and morality

Three objections to the Australian penalties doctrine

The English secondary rights approach: preserving a legally imposed regime remedying breach of contract

Summary

Other justifications for the penalties doctrine

The penalties doctrine does not preserve economically efficient outcomes

The penalties doctrine does not simply prevent deterrence

The penalties doctrine is not about preventing the creation of perverse contractual incentives

The penalties doctrine is not about preserving B's liberty of action

The penalties doctrine is not about alleviating deficiencies in contractual risk calculation and bargaining position

The penalties doctrine is not about preserving substantive contractual fairness

Engagement

Threshold test under Australian law: is the impugned agreed remedy a security right?

Threshold test under English law: is the impugned agreed remedy a secondary right?

Punishment

Recent developments

Seven principles

Justifying the legitimate interest standard

Remedies

Restatement of the Australian position: remedial consequences of a finding that a clause is penal

Restatement of the English position: remedial consequences of a finding that a clause is penal

Agreed remedies, penalties and potential limits on recovery

Interplay between legal rules

Does the Australian penalties doctrie consist of two distinct rules or a unified rule?

Relief against penalties in the context of deposit clauses

The relationship between forfeiture and penalties

A codified guide to the penalties doctrine.

It is a longstanding and common drafting technique in Australia and England for contracts to contain an agreed remedy which one party (A) can claim against the other (B) if B fails to fulfil her 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. From the Foreword by the Hon Justice James Edelman, High Court of Australia: "The detailed doctrinal and philosophical analysis in Contractual Penalties in Australia and the United Kingdom make it a book for scholars who want to understand the historical, conceptual, and moral foundations of the prohibition against contractual penalties. But its clear and concise style and its chapters and sections concerning the practical application of a doctrine based upon slippery foundations also make it essential reading for all commercial lawyers in Australia and England." - Publisher's website.

9

xix, 247 p. ; 25 cm