Abstract:
This article examines the juridical approach in Australia to ‘the rule’ that evidence of prior negotiations is excluded as an aid to the interpretation of written commercial contracts. It analyses three fundamental problems with the rule. First, the unclear bounds of the formulation of the rule and exceptions. Second, the unpredictable application of the rule and, thus, admissibility and use of evidence of prior negotiations. Thirdly, the uncertain foundation of the rule. The article concludes that the divergence in authority is partly attributable to differing conceptions of the appropriate balance between party autonomy and the law, which flow from the objective and subjective theories of contract respectively.
Caitlin Moustaka, The Admissibility And Use Of Evidence Of Prior Negotiations In Modern Contract Interpretation, University of Western Australia Law Review vol 41(1) (November 2016).
First posted 2017-01-03 08:46:57
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