The Case for Departing from the Exclusionary Rule against Prior Negotiations in the Interpretation of Contracts in Singapore

Publication Type

Journal Article

Publication Date

3-2013

Abstract

This article examines the viability of the exclusionary rule against prior negotiations in the interpretation of contracts in Singapore. It argues that the exclusionary rule should no longer be followed in Singapore through three main points. First, the Singapore courts retain entire freedom to depart from the exclusionary rule as it is not of legislative origin. Second, the Singapore courts should exercise this freedom because there is already local precedent, wherein the Singapore courts have referred to prior negotiations in the interpretation of contracts. Even if these local precedents are wrong, there remain convincing, independent reasons as to why the exclusionary rule should be rejected. Primarily, the rule is not supported as a matter of history and evolved through a misstep in a series of early-20th-century cases. Third, the rejection of the exclusionary rule does not mean that prior negotiations are always admissible in the contractual interpretative exercise: the challenge for the Singapore courts is to recognise exactly why such evidence is inadmissible, instead of following a blanket rule that is (as will be argued) unsupported by either its supposed longevity or substantive justifications.

Discipline

Asian Studies | Contracts

Publication

Singapore Academy of Law Journal

Volume

25

Issue

1

First Page

182

Last Page

214

ISSN

0218-2009

Publisher

Singapore Academy of Law

Additional URL

http://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal/e-Archive/ctl/eFirstSALPDFJournalView/mid/495/ArticleId/515/Citation/JournalsOnlinePDF

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