The contract that neither party intends

McLauchlan, David (2012) The contract that neither party intends. Journal of Contract Law, 29 26-46.

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Name Description MIMEType Size Downloads
Author McLauchlan, David
Title The contract that neither party intends
Journal name Journal of Contract Law   Check publisher's open access policy
ISSN 1030-7230
Publication date 2012
Sub-type Article (original research)
Volume 29
Start page 26
End page 46
Total pages 21
Place of publication Chatswood, NSW, Australia
Publisher LexisNexis Butterworths
Collection year 2013
Language eng
Abstract This article responds to the observations of Heydon and Crennan JJ in the recent case of Byrnes v Kendle concerning, inter alia, the irrelevance of thesubjective intentions of contracting parties. Their Honours endorsed the view of the well-known American judge and jurist Oliver Wendell Holmes expressed nearly 115 years ago concerning the objective approach to contract formation and interpretation. In particular, they suggested that the law of contract is primarily concerned with finding a correspondence of external signs, that the parties’ actual intentions are irrelevant except in ‘limited circumstances’, and that there can be a binding contract that neither party intends because it is only what the parties said that matters in the law of contract, not what they meant. The author discusses several reasons why this view of basic contract doctrine should be rejected.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2013 Collection
TC Beirne School of Law Publications
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Created: Thu, 11 Apr 2013, 12:31:31 EST by Jillian Davis on behalf of T.C. Beirne School of Law