Publication Type

Journal Article

Version

publishedVersion

Publication Date

1-2009

Abstract

This paper explores, through illustrations from the law of contract, the important centraltheme to the effect that the rules and principles, which constitute thedoctrineof the law,are not ends in themselves but are, rather, the means through which the courts arrive atsubstantively fairoutcomes in the cases before them. The paper focuses on the concept of‘radicalism’, which relates to the point at which the courts decide that it is legallypermissible to hold that a contract should come to an end because a radical or funda-mental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. Itexplores the role of this concept as embodied in the doctrines of frustration, commonmistake, discharge by breach, as well as fundamental breach in the context of exceptionclauses – in particular, how ‘radicalism’ with regard to these doctrines can be viewed fromthe (integrated) perspectives of structure, linkage and fairness. The paper also touchesbriefly on linkages amongst the doctrines of economic duress, undue influence and uncon-scionability, as well as the ultimate aim these doctrines share of achieving fair outcomesin the cases concerned.

Discipline

Contracts

Research Areas

Corporate, Finance and Securities Law

Publication

Legal Studies

Volume

29

Issue

4

First Page

534

Last Page

575

ISSN

0261-3875

Identifier

10.1111/j.1748-121X.2009.00140.x

Publisher

Cambridge University Press

Additional URL

https://doi.org/10.1111/j.1748-121X.2009.00140.x

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