Publication Type

Book Chapter

Version

publishedVersion

Publication Date

9-2020

Abstract

It has been accurately observed that the incremental nature of the common law’s development makes it inherently unsuited to dealing with unprecedented crises.208 This is particularly true of what I shall refer to (for convenience) as the law of changed circumstances, which in the common law regime comprises the doctrine of frustration and the operation of force majeure clauses, but could potentially encompass other doctrines and issues as well.209 I suggest that in this area, the flaws of the common law run deeper and broader than its inability to respond quickly to unprecedented crises. Rather, from a lay user’s point of view, the common law on its own or layered with statute is necessarily unsatisfactory for dealing with changed circumstances – whether unprecedented or mundane – due to the uncertainty it creates in a context where certainty is vital. Further, the courts are poorly placed to implement the root and branch reform that is needed to provide certainty; what is needed is a unified statutory regime dealing with changed circumstances, not one cobbled together from disparate pieces of common law and legislation. The COVID-19 pandemic did not cause these problems. It merely brought issues of changed circumstances to the fore through their prevalence, and shone a light on the generally unsatisfactory state of the common law. This chapter is primarily exploratory and diagnostic. I begin by explaining what I mean by uncertainty and why (and when) it is a problem for the law. I then assess the degree of uncertainty surrounding the law of changed circumstances in Singapore. Finally, I outline some of the attributes that an appropriate solution to this uncertainty should have.

Keywords

Courts, Singapore, COVID-19, pandemic, public health

Discipline

Asian Studies | Contracts | Public Health

Research Areas

Private Law

Publication

Law and COVID-19

Editor

Aurelio Gurrea-Martinez, Mark Findlay and Goh Yihan

First Page

69

Last Page

77

ISBN

9781467396172

Identifier

10.2139/ssrn.3686357

Publisher

School of Law, Singapore Management University

City or Country

Singapore

Embargo Period

4-19-2021

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.2139/ssrn.3686357

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