Warren Swain, ‘Codification of Contract Law: Some Lessons from History’

Writing in The Australian on the 23rd of March this year, the Attorney-General introduced a discussion paper to explore the scope for reforming Australian contract law to the wider Australian public. She admitted that ‘I expect there to be both passionate reformers and trenchant defenders of the status quo. And, I look forward to the debate ahead’. The first stage of the debate will certainly be brief. A deadline for submissions on the discussion paper was fixed at just four months. There are signs that the Government is more enthusiastic about the project of contract codification than in the recent past. The new Attorney-General has signaled a change of tone: ‘It would be foolish for Australia to stand still without at least carefully considering opportunities that may deliver productivity gains for Australian businesses and new job opportunities for working Australians’. Having observed that contract law reform is ‘not an all or nothing affair’, the discussion paper considers three options. These are labelled restatement, simplification and reform. The possibility of retaining the status quo barely gets a mention. Whether reform of Australian contract law is necessary, desirable and possible is a question best left to those who have devoted many years to its careful study. It would be presumptuous for an outsider to comment. The aim here is different. It is simply to raise some concerns about the difficulties inherent in codification in general and contract codification in particular. These are issues not touched upon in a discussion paper which is relentlessly upbeat. It is easy to portray those who do not wholeheartedly support codification as stuck in the past, but only by being realistic about what codification can and cannot do and the costs involved, is reform of any sort going to be achievable.

Swain, Warren, Codification of Contract Law: Some Lessons from History (2013). W Swain, Codification of contract law: some lessons from history. University of Queensland Law Journal, 31 1: 39-54.; University of Queensland TC Beirne School of Law Research Paper No. 13-14.

First posted 2013-11-15 18:40:12

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