Dear Colleagues:

Given our recent discussions as to strict legalism, list-members might be interested in the following articles in the most recent Oxford University Commonwealth Law Journal:

The Trivial Nature of Strict Legalism

Dr Frank Carrigan

Abstract: The purpose of the paper is to engage in a searching analysis of John Gava's strict legalist interpretation of how judges decide contract cases. In a series of articles Gava has expressed fidelity to the idea of law as a system of rules. For Gava the judicial method is based on viewing law as an autonomous discipline. Utilizing the work of cardinal thinkers Gava's conceptual framework is challenged. The aim is to pinpoint the asymmetrical world of contract bargaining and highlight that it is imprudent to promote the view that law exists in an intellectual vacuum immune to political and economic forces. The paper highlights that Gava's strict legalism is not a minority position in legal circles. There is a resurgence in doctrinal scholarship. The paper argues that there are no neutral readings of law and the theoretical and political presuppositions of strict legalism require interrogation.

Contract Law and Inequality—a Response to Frank Carrigan

John Gava

Abstract: Frank Carrigan argues that the legalistic judging of Sir Owen Dixon is a trivial matter because it merely reproduces and reinforces the substantive inequality between persons in our society. I agree that inequality in our society is real and needs to be addressed. However, given the limitations of judges and the institutional limitations of the courts, contract law is a poor vehicle for overcoming such inequality when compared to the many social, economic and political policy options open to governments. Not only, however, is contract law a misconceived tool for the amelioration of poverty; to use it in this way runs the real risk of destroying one of its most significant attributes—the formal equality enshrined in the common law of contract.

The issue also has many other articles for those interested in the law of obligations:

New Zealand’s New Privacy Tort in Comparative Perspective

Chris DL Hunt

Abstract: In C v Holland the High Court of New Zealand recognised a new privacy tort, which applies to intrusions into a person's privacy. It compliments New Zealand's other privacy tort, which captures the unauthorised publication of private information. These two actions are modelled on the American common law, which has also been influential in Canada as it too recently created an intrusion tort. English courts, for their part, have largely eschewed the American approach. In England, it remains uncertain whether bare intrusions are actionable, although it seems likely they will be in time. And while English courts now have a robust disclosure based action, its essential elements are different from that followed in America and New Zealand. In this comment the author examines New Zealand's new intrusion tort in light of the approaches taken in these other jurisdictions. He concludes by preferring the modern English approach for two reasons: (i) It does not have an express 'seclusion' requirement, and (ii) it does not require the claimant to prove that the privacy invasion was 'highly offensive'.

In Defence of Consideration

Mindy Chen–Wishart

Abstract: Much of the scholarship against the consideration doctrine is explicitly or implicitly based on the monistic deontological view that morality and respect for individual autonomy require the enforcement of promises, whether supported by consideration or not. A different picture emerges when a richer conception of autonomy is recognised and other legitimate concerns of state action are acknowledged; namely: (i) the protection of valuable and autonomy-enhancing social forms, (ii) the need for respectful dealing, (iii) tracking the instinct of reciprocity that preserve social stability, and (iv) meeting the demands of administrability. On these criteria, transactions in the private domain should generally remain free from contract, while transactions in the market domain - where reciprocity, trust and social sanctions are not implicit - should only attract state enforcement where the parties' dealings are marked by mutual respect. Consideration is a key marker of the boundary between the two.

Contractual Interpretation in Indian Evidence Act Jurisdictions: Compatibility With Modern Contextual Approach?

Goh–Yihan

Abstract: This paper examines the approaches towards contractual interpretation taken by Commonwealth jurisdictions governed by the Indian Evidence Act. While some of these jurisdictions import the modern contextual approach into their domestic approaches, it will be argued that it is largely compatible with the Indian Evidence Act. In particular, it will be shown that a limited adoption of the modern contextual approach is permissible, namely one involving the limited admissibility of extrinsic evidence to interpret contracts, subject to the requirement of ambiguity. An integrated approach may represent the best way of following the modern contextual approach, while remaining faithful to the original intent behind the Indian Evidence Act.

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Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435