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. History

I. The hard law of the conditional bond

II. Early common law authorities

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

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

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

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

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

VIII. Summary

3. Two approaches

I. Removing the breach of contract requirement and the decision in Andrews

II. The Australian security rights approach: legal history

III. The Australian security rights approach: policy and morality

IV. Three objections to the Australian penalties doctrine

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

VI. Summary

4. Other justifications for the penalties doctrine

I. The penalties doctrine does not preserve economically efficient outcomes

II. The penalties doctrine does not simply prevent deterrence

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

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

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

VI. The penalties doctrine is not about preserving substantive contractual fairness

5. Engagement

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

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

6. Punishment

I. Recent developments

II. Seven principles

III. Justifying the legitimate interest standard

7. Remedies

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

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

III. Agreed remedies, penalties and potential limits on recovery

8. Interplay between legal rules

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

II. Relief against penalties in the context of deposit clauses

III. The relationship between forfeiture and penalties

9. Conclusions

10. 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.

9781760022143

xix, 247 p. ; 25 cm