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Published online by Cambridge University Press: 02 January 2018
This paper explores, through illustrations from the law of contract, the important central theme to the effect that the rules and principles, which constitute the doctrine of the law, are not ends in themselves but are, rather, the means through which the courts arrive at substantively fair outcomes 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 legally permissible to hold that a contract should come to an end because a radical or fundamental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. It explores the role of this concept as embodied in the doctrines of frustration, common mistake, discharge by breach, as well as fundamental breach in the context of exception clauses – in particular, how ‘radicalism’ with regard to these doctrines can be viewed from the (integrated) perspectives of structure, linkage and fairness. The paper also touches briefly on linkages amongst the doctrines of economic duress, undue influence and unconscionability, as well as the ultimate aim these doctrines share of achieving fair outcomes in the cases concerned.
This is a modified version of a public lecture delivered on 16 April 2009 as part of the Common Law Lecture series held under the auspices of the Faculty of Law, University of Hong Kong (to whom I am grateful for permission to publish the lecture in its present form). I would also like to express my gratitude to Professor Yeo Tiong Min, Yong Pung How Professor of Law, School of Law, Singapore Management University; Professor Hans Tjio, Faculty of Law, National University of Singapore; Mr Goh Yihan, Faculty of Law, National University of Singapore; and Mr Peh Aik Hin, Senior Justices’ Law Clerk, Supreme Court of Singapore, for their valuable comments and suggestions. My grateful thanks, also, to Professor Rob Merkin and Professor Jill Poole. However, all errors remain my own. Further, all views expressed in this lecture are personal views only and do not reflect the views of the Supreme Court of Singapore. Still less, of course, do they bind me in any future cases that may come before me! It will be evident from the lecture itself that it is itself a kind of work in progress, having had, in fact, many of its ‘roots’ in various ideas as well as articles over a period of approximately two decades.
1 I would like, in particular, to express my gratitude to Professor Johannes Chan SC, Dean, Faculty of Law, University of Hong Kong, for his kindness and assistance throughout. I am also very grateful to Ms Rebecca Lee of the Faculty of Law, University of Hong Kong, who, despite her considerable academic as well as other commitments, helped organise my visit with meticulous attention to detail as well as with great kindness and hospitality. My thanks, also, to Ms Jessica Young, Faculty of Law, University of Hong Kong, who extended me much cheerful assistance as well. I am also grateful to Mr Kelvin Low and Mr Kelry Loi of the Faculty of Law, University of Hong Kong, for their valuable assistance in both pointing me to – as well as obtaining for me (where necessary) – relevant materials relating to the contract law of Hong Kong.
2 One of the products of that visit was Phang, A ‘Convergence and divergence – a preliminary comparative analysis of the Singapore and Hong Kong legal systems’ (1993) 23 Hong Kong Law Journal 1 Google Scholar, which was (in turn) based on a public lecture delivered at the University of Hong Kong on 31 October 1991.
3 The concept of ‘principles’ finds its most prominent proponent in Professor Ronald Dworkin (see, in particular, ‘Hard cases’ in Dworkin, R Taking Rights Seriously (Cambridge, MA: Harvard University Press Google ScholarPubMed, revsd edn, 1978) ch 4). However, I have pointed out elsewhere that Dworkin was, with respect, wrong in arguing, inter alia, that the late Professor HLA Hart had omitted to consider the concept of ‘principles’ and had focused, instead, only on the concept of ‘rules’ see A Phang ‘Jurisprudential oaks from mythical acorns: the Hart-Dworkin debate revisited’ (1990) 3 Ratio Juris 385 at 386–390.
4 It should be noted that the term ‘fair’ is utilised in order to distinguish it from a merely legally correct result in the technical sense as a result of the application of the relevant legal doctrine. If the latter had to be distinguished from the former, then it is suggested that the term ‘just’ might be more appropriate. However, in accordance with the main thrust of the present lecture, the application of the relevant legal doctrine ought to enable the court concerned to arrive at a substantively fair result or decision. Viewed in that light, the court ought therefore to arrive at a result that is both ‘just’ and ‘fair’.
5 I have dealt with this point briefly elsewhere; see the Singapore High Court decision of Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric (practising under the name and style of WP Architects) [2007] 1-SLR 853 (reversed, Sunny Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782, but without considering this particular point).
6 There is copious material in this regard and, which because of their philosophical bent, fall outside the scope of this lecture. Insofar as scepticism in the law is concerned, one is reminded immediately of the profound influence from America that witnessed at least two major movements decades apart: first, the Legal Realist Movement, followed by Critical Legal Studies. For a radically different perspective, see, eg, the work of Professor Ronald Dworkin (eg ‘Law, philosophy and interpretation’ (1994) 80 Archiv Für Rechts-und Sozialphilosophie 463 Google Scholar; Taking Rights Seriously, above n 3; and However, such is the nature of legal theory and jurisprudence that we find debates even amongst those who share a similar approach (here, that, inter alia, the law is objective); see, eg, the famous ‘Hart-Dworkin Debate’ (in addition to the works by Dworkin cited above, see also : see also Phang, above n 3; and, by the same author, ‘“The concept of law” revisited’ (1995) Tydskrif Vir Die Suid-Afrikaanse Reg 403) as well as the (earlier, but no less famous) ‘Hart-Fuller Debate’ (see, eg, and, by the same author, The Concept of Law, above; as well as and, by the same author, There is, of course, a myriad of other legal theories and writings (see generally, eg, A Phang ‘Theories of law’ in RC Beckman, BS Coleman and J Lee Case Analysis and Statutory Interpretation – Cases and Materials (Faculty of Law, National University of Singapore, 2nd edn, 2001), pp 8–31 and 574–577). However, this does not necessarily mean that there is no objectivity in the law (cf also below n 8). Indeed, the inherently abstract nature of writings in legal theory and jurisprudence contributes, in large part, towards the continued discourse as well as debate. However, the practice of the law itself is, of course, quite different, connecting (as it does) with the specific factual matrix as well as the objective decision thereon. Finally, it should be noted that although the literature cited above deals with Western jurisprudence, the arguments contained therein ought – by their very nature – to contain a universality that extends to (and at least overlaps with) Eastern legal theories as well. However, this is an extremely large topic that cannot obviously be dealt with here.
7 See my observations in the Singapore High Court decision of Forefront Medical Technology (Pte) Ltd v Modern-Pak Private Ltd [2006] 1 SLR 927 at [26].
8 And on objectivity in the law generally, see Phang, A ‘Security of contract and the pursuit of fairness’ (2000) 16 Journal of Contract Law 158 at 166–183 (and the literature cited therein).Google Scholar
9 That is why, eg, even Marxian philosophers such as the late EP Thompson eschew a reductionist approach which views law as mere superstructure (as opposed to having any substantive value in itself): see, eg, Thompson, EP Whigs and Hunters (London: Pantheon Books, 1975) at pp 258–269.Google Scholar
10 A similar approach obtains with regard to the (closely related) issue of the relationship between procedural and substantive justice (the latter of which coincides with the fair result I refer to in the present lecture). That procedural and substantive justice are inextricably connected and that the latter is the ultimate aim of any judicial process is clear; as I observed in the Singapore High Court decision of United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2-SLR 425 (at [8]): ‘The quest for justice... entails a continuous need to balance the procedural with the substantive. More than that, it is a continuous attempt to ensure that both are integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without the other. There must, therefore, be – as far as is possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do. When in doubt, the courts would do well to keep these bedrock principles in mind. This is especially significant because, in many ways, this is how... laypersons perceive the administration of justice to be. The legitimacy of the law in their eyes must never be compromised. On the contrary, it should, as far as is possible, be enhanced’ (original emphasis).
11 And see the Singapore Court of Appeal decision of Tee Soon Kay v Attorney-General [2007] 3 SLR 133 at [109].
12 Namely a ‘condition’ (as opposed to a ‘warranty’) pursuant to the ‘condition-warranty approach’. I discuss the role of this approach as well as the ‘Hongkong Fir approach’ in more detail below (see the main text accompanying below n 50 et seq).
13 Some of the ideas to be discussed have been dealt with by me elsewhere: see Phang, A Undue influence – methodology, sources and linkages 1995 Journal of Business Law 552 Google Scholar and, by the same author, However, this lecture deals with more ideas as well as materials and (more importantly) attempts to draw the various threads together.
14 See Megarry, RE Miscellany-at-Law (London: Stevens & Sons Ltd, 1955)Google Scholar at p 210; and cited in the Singapore Court of Appeal decision of Panwah Steel Pte Ltd v Koh Brothers Building & Civil Engineering Contractor (Pte) Ltd[2006] 4 SLR 571 at [8].
15 [1956] 1 AC 696.
16 Ibid, at 729 (emphasis added).
17 [2007] 4 SLR 413 at [59]. See also, eg, the recent English Court of Appeal decision of CTI Group Inc v Transclear SA [2008] 2 Lloyd's Rep 526 at [13].
18 See, eg, the Hong Kong High Court decision of Yung Kee Co v Cheung So Yin Kee[1983] 1 HKC 386 at 393 and the Hong Kong Court of Appeal decision of Jan Albert (HK) Ltd v Shu Kong Garment Factory Ltd[1989] 2 HKC 156 at 162. See also generally Hall, S Law of Contract in Hong Kong – Cases and Commentary (London: LexisNexis, 2nd edn, 2008) pp 704–708.Google Scholar
19 See MacMillan, C Taylor v Caldwell (1863)’ in Mitchell, C and Mitchell, P (eds) Landmark Cases in the Law of Contract (Oxford: Hart Publishing, 2008).Google Scholar ch 6 at p 203 (emphasis added).
20 (1863) 3 B & S 826 (for an historical perspective of the case itself, see MacMillan, ibid).
21 And see MacMillan, ibid, at p 203.
22 The leading work must surely be Professor Treitel's monumental treatise: Treitel, GH Frustration and Force Majeure (London: Sweet & Maxwell, 2nd edn, 2004).Google Scholar
23 Simply put, what is the precise juridical basis of the doctrine? And see generally the present author's views on this particular issue in Phang, A ‘Frustration in English law – a reappraisal’ (1992) 21 Anglo-American Law Review 278 at 284–285.Google Scholar
24 A brief list would include the following: the issue of increased costs, the role of foreseeability as well as force majeure clauses, and the issue of self-induced frustration.
25 This particular case is discussed in more detail below with regard to the doctrine of discharge by breach (see generally the main text to n 50 et seq below).
26 I have, in fact, dealt with them elsewhere; see generally Phang, above n 23.
27 This device has, in the context of jurisprudence, been used to great effect by Professor Ronald Dworkin; see, eg, Dworkin, above n 3, ch 4. However, the actual concept centring on ‘conceptions of the same concept’ is to be located in an earlier work which is also cited by Dworkin (in Taking Rights Seriously, above n 3, p 103): see Gallie, WB, ‘Essentially contested concepts’ (1956) 56 Proceedings of the Aristotelian Society 167 CrossRefGoogle Scholar (which essay is reprinted in ch 8 of the author's book, Philosophy and the Historical Understanding (New York: Schocken Books, 2nd edn, 1968)).
28 See generally, eg, Slade, CJ ‘The myth of mistake in the English law of contract’ (1954) 70 Law Quarterly Review 385 Google Scholar; ; ; , amongst other pieces.
29 Though cf the category of mutual mistake, where it was observed, in the Singapore High Court decision of Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR 117, as follows (at [58]): ‘The doctrine of mutual mistake overlaps completely... with the doctrine of offer and acceptance, dealing with the issue of the formation of a pre-existing transaction as opposed to a mistaken payment simpliciter (and see, for this last-mentioned distinction, per Lai Kew Chai.J in the Singapore High Court decision of Info-communications Development Authority of Singapore v Singapore Telecommunications Ltd (No.2) [2002] 3 SLR 488, especially at [85]–[89]). Put simply, this particular aspect of the law relating to mistake is simply the result of a lack of coincidence between offer and acceptance. In other words, both parties are at cross-purposes and, hence, no agreement or contract has been formed as a result’ (original emphasis).
30 [2003] QB 679; and not following the well-established English Court of Appeal decision of Solle v Butcher[1950] 1 KB 671 (in particular, the observations of Denning LJ (as he then was); and for an historical perspective of the case itself, see Mitchell, C and Mitchell, P Landmark Cases in the Law of Restitution (Oxford: Hart Publishing, 2006 Google Scholar) ch 12). Not surprisingly, this particular decision has attracted much commentary; see, eg, FMB Reynolds ‘Reconsider the contract textbooks’ (2003) 119 Law Quarterly Review 177; SB Midwinder ‘The Great Peace and precedent’ (2003) 119 Law Quarterly Review 180; C Hare ‘Inequitable mistake’ [2003] Cambridge Law Journal 29; A Chandler, J Devenney and J Poole ‘Common mistake: theoretical justification and remedial inflexibility’ [2004] Journal of Business Law 34; JD McCamus ‘Mistaken assumptions in equity: sound doctrine or chimera?’ (2004) 40 Canadian Business Law Journal 46; KFK Low ‘Coming to terms with The Great Peace in common mistake’ in JW Nyers, R Bronaugh and SGAPitel (eds) Exploring Contract Law (Oxford: Hart Publishing, 2009) ch 13; and A Phang ‘Controversy in common mistake’ [2003] Conveyancer and Property Lawyer 247.
31 See Phang, ibid.
32 Briefly put, the House of Lords decision in Bell v Lever Brothers Ltd[1932] AC 161 did not, by any means, establish a clear and unambiguous doctrine of common mistake at common law in the first instance. There is, indeed, some case-law (the Australian High Court decision in McRae v Commonwealth Disposals Commission (1951) 84 CLR 377) and an influential body of academic literature (see the articles cited above n 28) that suggest that there is no substantive doctrine of common mistake at common law in the first instance and that it is all, in the final analysis, a question of construction of the contract concerned. Further, a leading textbook expressed doubt as to whether or not, even assuming that there was a substantive doctrine of common mistake at common law in the first instance, such a doctrine was practically viable, given the almost absolute strictness with which it was applied in Bell v Lever Brothers Ltd itself (see Furmston, MP Cheshire, Fifoot and Furmston's Law of Contract (Oxford: Oxford University Press, 17th edn, 2007)Google Scholar at pp 291–293). See also the recent and exhaustive historical survey as well as analysis by C MacMillan ‘How temptation led to mistake: an explanation of Bell v Lever Brothers, Ltd’ (2003) 119 Law Quarterly Review 625.
33 See the Singapore Court of Appeal decision of Chwee Kin Keong v Digilandmall.com Pte Ltd[2005] 1 SLR 502 (noted by Yeo, TM ‘Great Peace: a distant disturbance’ (2005) 121 Law Quarterly Review 393 Google Scholar; KFK Low ‘Unilateral mistake at common law and in equity’ [2005] Lloyd's Maritime and Commercial Law Quarterly 423; and PW Lee ‘Unilateral mistake in common law and equity – Solle v Butcher reinstated’ (2006) 22 Journal of Contract Law 81).
34 Cf the Hong Kong Court of First Instance decision of Tony Investments Ltd v Fung Sun Kwan [2006] 1 HKLRD 835, where the court cited the Great Peace Shipping case (above n 30).
35 See, eg, the Hong Kong High Court decision of China Resources Metals & Minerals Co Ltd v Ananda Non-Ferrous Metals Ltd [1994] 3 HKC 526, where the doctrines of common mistake at common law and in equity were considered. This decision antedates, of course, that in the Great Peace Shipping case. A recent work appears to adopt a more neutral position on this particular issue (see Hall, above n 18, pp 529–538).
36 See Phang, A ‘Common mistake in English law: the proposed merger of common law and equity’ (1989) 9 Legal Studies 291.CrossRefGoogle Scholar
37 As to which see above n 16. Cf also the tests for unilateral mistake as well as mistaken identity (and see generally, eg, Furmston, above n 33, pp 309–317 as well as (insofar as the former is concerned) Chwee Kin Keong v Digilandmall.com Pte Ltd, above n 33).
38 Above n 32.
39 Ibid, at 218 (emphasis added).
40 Ibid, at 235 (emphasis added).
41 See Phang, above n 36, at 294.
42 [1989] 1 WLR 255 at 268–269 (emphasis added); noted by GH Treitel, ‘Mistake in contract’ (1988) 104 Law Quarterly Review 501; G Marston ‘Common mistake – whether guarantee transaction void ab initio’ [1988] Cambridge Law Journal 173; and JW Carter ‘An uncommon mistake’ (1991) 3 Journal of Contract Law 237.
43 Above n 30, at [61] (emphasis added). See also the analysis ibid, at [62] et seq.
44 Above n 30, at 693 (emphasis added). Though cf Cartwright, J ‘ Solle v Butcher and the doctrine of mistake in contract’ (1987) 103 Law Quarterly Review 594.Google Scholar
45 And see generally Phang, above n 36, at 295–297.
46 A classic illustration of this distinction can be found in the ‘Coronation cases’, where cases involving the doctrine of frustration (see, eg, the English Court of Appeal decisions of Krell v Henry [1903] 2 KB 740 and Chandler v Webster [1904] 1 KB 493) and those involving the doctrine of common mistake (see, eg, the English High Court decision of Griffith v Brymer (1903) 19 TLR 434) concerned precisely the same event, namely the hiring of a room along the route of the Coronation procession which was cancelled owing to the sudden illness of King Edward. In particular, the case of Griffith v Brymer, above, was decided on the basis of the doctrine of common mistake as the parties had made the contract in common ignorance of the decision to cancel the procession one hour earlier.
47 Above n 18; noted in A Phang ‘Common mistake and frustration in Hong Kong’ [1991] Lloyd's Maritime and Commercial Law Quarterly 297. See also generally Hall, above n 18, pp 518–538 and 728–731.
48 And see generally Phang, above n 36, at 297–301.
49 See Phang ‘On linkages in contract law – mistake, frustration and implied terms reconsidered’, above n 13, at 486–487 (emphasis added).
50 Above n 17, at [113].
51 [2008] 1 SLR 663.
52 See ibid, at [153]–[158] (original emphasis).
53 [1974] AC 235.
54 See above n 51, at [167]–[169].
55 Cf, eg, the House of Lords' decision of Afovos Shipping Co SA v Romano Pagnan and Pietro Pagnan[1983] 1 WLR 195 at 203 and the New South Wales Court of Appeal decision of Hewitt v Debus (2004) 39 NSWLR 617 with the High Court of Australia decisions of Shevill v The Builders Licensing Board (1982) 149 CLR 620 at 627–628 and (perhaps) Legione v Hateley (1983) 152 CLR 406 at 445, as well as the New South Wales Court of Appeal decision of Honner v Ashton (1979) 1 BPR 9478 at 9483. See also generally Carter, JW ‘Termination clauses’ (1990) 3 Journal of Contract Law 90 at 104–105.Google Scholar
56 See generally Whittaker, S Termination clauses' in Burrows, A and Peel, E (eds) Contract Terms (Oxford: Oxford University Press, 2007)Google Scholar ch 13 and H Beale ‘Penalties in termination provisions’ (1988) 104 Law Quarterly Review 355.
57 See the English Court of Appeal decision of Financings Ltd v Baldock[1963] 2 QB 104; though cf the (also) English Court of Appeal decision of Lombard North Central Plc v Butterworth[1987] 1 QB 527 (noted in GH Treitel, ‘Damages on rescission for breach of contract’[1987] Lloyd's Maritime and Commercial Law Quarterly 143 and Beale, above n 56). Cf also the interesting articles by Carter, above n 55, and Opeskin, BR ‘Damages for breach of contract terminated under express terms’ (1990) 106 Law Quarterly Review 293.Google Scholar
58 See the main text accompanying below nn 63–67.
59 Though cf the query (set out in the table above) as to whether or not the innocent party can terminate the contract if the party in breach deliberately chooses to perform its part of the contract in a manner that amounts to a substantial breach.
60 See above n 17, at [102]–[103].
61 Where the focus is on the nature of the term (as opposed, as in the ‘Hongkong Fir approach’, to the actual consequences of the breach). Reference may also be made to the oft-cited observations by Bowen LJ (as he then was) in the English Court of Appeal decision of Bentsen v Taylor, Sons & Co [1893] 2-QB 274 at 281.
62 This approach was first enunciated by Diplock LJ (as he then was) in the English Court of Appeal decision of Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, and is elaborated upon below (see the text to n 79 et seq, below).
63 See generally JW Carter ‘Intermediate terms arrive in Australia and Singapore’ (2008) 24 Journal of Contract Law 226 and Y Goh ‘Towards a consistent approach in breach and termination of contract at common law: RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd’ (2008) 24 Journal of Contract Law 251. Reference may also be made to D Nolan ‘Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, The Hongkong Fir (1961)’ in Mitchell and Mitchell, above n 19, ch 9 at pp 293–294, where, however, the learned author focuses (in the final analysis) on what is (in substance) the ‘Hongkong Fir approach’ (see also FMB Reynolds ‘Warranty, condition and fundamental term’ (1963) 79 Law Quarterly Review 534).
64 Bearing in mind the approach of the House of Lords in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 (where it will be recalled that the court held that, despite the fact that the parties had expressly utilised the word ‘condition’, that word was merely used in a lay sense and not as a legal term of art), I am assuming here that the parties would (in such a situation) utilise clear and unambiguous language that goes beyond merely stating that the term concerned is a ‘warranty’.
65 See Goh, above n 63. Not surprisingly, the learned author also argues that effect should be given to the intention of the parties in the second situation as well (ie where the parties have expressly designated the term concerned as a ‘warranty’).
66 See, eg, Reynolds, above n 63 (where it is argued that the focus should be on the nature of the breach, rather than the nature of the term broken); Prof GH Treitel's inaugural lecture delivered before the University of Oxford in Doctrine and Discretion in the Law of Contract (Oxford: Clarendon Press, 1981) p 6 (where it is pointed out that the law relating to discharge by breach was focused, originally, on the seriousness of the breach (which is, in substance, the ‘Hongkong Fir approach’), although it later developed to focus on the nature of the term (which is the ‘condition-warranty approach’); and Nolan, above n 63, pp 270–276 (as well as p 294).
67 Reference may also be made to the English High Court decision of M & J Polymers Ltd v Imerys Minerals Ltd [2008] 1 Lloyd's Rep 541 at 547. Since this lecture was delivered, the Singapore Court of Appeal has handed down its judgment in Sports Connection Private Limited v Deuter Sports GmbH [2009] SGCA 22, where the approach laid down in the RDC Concrete case (above n 17) was reaffirmed, but ‘with the extremely limited exception that, where the term itself states expressly (as well as clearly and unambiguously) that any breach of it, regardless of the seriousness of the consequences that follow from that breach, will never entitle the innocent party to terminate the contract, then the court will give effect to this particular type of term (viz, a warranty expressly intended by the parties)’ (at [57]; original emphasis); see also ibid, at [48]–[50].
68 (2007) 233 CLR 115; noted in K Dharmananda and A Papamatheos ‘Termination and the third term: discharge and repudiation’ (2008) 124 Law Quarterly Review 373 as well as in PG Turner ‘The Hongkong Fir docks in Australia’ [2008] Lloyd's Maritime and Commercial Law Quarterly 432.
69 Ibid, at [53] and [70].
70 Contra, Kirby J who, whilst arriving at the same result as the majority, was nevertheless of the view that the ‘Hongkong Fir approach’ ought not to be part of Australian law – a somewhat controversial view which, however, does not represent Singapore law and has received a mixed reception in the commentaries cited above (n 68).
71 The Canadian courts appear to have endorsed the ‘Hongkong Fir approach’: see, eg, the Ontario Court of Appeal decision of Jorian Properties Ltd v Zellenrath (1984) 46 OR (2d) 775; the British Columbia Court of Appeal decision of Lehndorff Canadian Pension Properties Ltd v Davis Management Ltd (1989) 59 DLR (4th) 1; the Alberta Court of Appeal decision of First City Trust Co v Triple Five Corp Ltd (1989) 57 DLR (4th) 554; the British Columbia Court of Appeal decision of Ramrod Investments Ltd v Matsumoto Shipyards Limited (1990) 47 BCLR (2d) 86; and the Alberta Provincial Court decision of Krawchuk v Ulrychova (1996) 40 Alta LR (3d) 196 (and cf the Supreme Court of Canada decision of Field v Zien (1963) 42 DLR (2d) 703, as well as the Ontario Court of Appeal decision of 968703 Ontario Ltd v Vernon (2002) 58 OR (3d) 215).
72 See the Hong Kong Court of Final Appeal decision of Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1 and the Hong Kong Court of First Instance decision of Okachi (Hong Kong) Co Ltd v Nominee (Holding) Ltd [2005] 3 HKC 408.
73 See the Hong Kong Court of Appeal decision of Okachi (Hong Kong) Co Ltd v Nominee (Holding) Ltd [2006] HKCU 1932 (and for related proceedings, – with regard to application for leave to appeal to the Hong Kong Court of Final Appeal – see the Hong Kong Court of Appeal decision of Okachi (Hong Kong) Co Ltd v Nominee (Holding) Ltd [2007] HKCU 1942). See also generally Hall, above n 18, ch 10.
74 Above n 62. And for Lord Diplock's own (and extremely interesting) views (from an extrajudicial perspective), see Diplock, Lord ‘The law of contract in the eighties’ (1981) 15 University of British Columbia Law Review 371 at 374–377.Google Scholar
75 See above n 62, at 66 (emphasis added).
76 See ibid, at 69–70 (original emphasis).
77 [1981] 1 WLR 711.
78 Ibid, at 714.
79 Ibid, at 725.
80 Above n 62, at 66–67 (emphasis added).
81 Though cf the observations in the Great Peace Shipping case with regard to the relationship between common mistake at common law and the ‘Hongkong Fir approach’, above n 30, at [82]–[83].
82 [1978] AC 904.
83 (1867) LR 2 QB 580.
84 See also MacMillan, above n 19, p 191.
85 See generally above n 83, at 586–588.
86 And see the main text accompanying below, nn 117–118.
87 As embodied in the relevant parts of Justinian's Digest; see above n 83, at 587–588.
88 Reference may also be made to the judgment of Devlin J (as he then was) in the English High Court decision of Universal Cargo Carriers Corporation v Citati [1957] 2 QB 401 at 430 et seq (which is also cited by Diplock LJ in the Hongkong Fir case (see above n 76); see also JE Stannard ‘Frustrating delay’ (1983) 46 Modern Law Review 738 and, by the same author, Delay in the Performance of Contractual Obligations (Oxford: Oxford University Press, 2007) pp 143–147 and (especially) ch 12).
89 See, eg, Reynolds, above n 63, at 540; JW Carter, GJ Tolhurst and E Peden ‘Developing the intermediate term concept’ (2006) 22 Journal of Contract Law 268 at 272; and Carter, above n 63, at 248–249. The latter author, however, raised the question as to whether or not the test laid down by Diplock LJ pursuant to the ‘Hongkong Fir approach’ is too strict (see ibid).
90 See Nolan, above n 63, p 286 (emphasis added). See also ibid, p 292.
91 Ibid, p 295.
92 Ibid.
93 Ibid.
94 Ibid, pp 295–296.
95 Ibid, p 296. See also Carter et al, above n 89.
96 And see above n 16.
97 See generally the seminal work by Professor Coote, Brian Exception Clauses (London: Sweet & Maxwell, 1964)Google Scholar. Indeed, the term ‘exception clause’ is a more appropriate generic term, which would cover more specific categories such as total exclusion of liability clauses and limitation clauses.
98 See generally the discussion in the preceding section of this lecture.
99 Contra, in this last-mentioned regard, JL Montrose ‘Some problems about fundamental terms’ [1964] Cambridge Law Journal 60 at 80.
100 See also A Phang ‘Exploring and expanding horizons: the influence and scholarship of Professor JL Montrose’ (1997) 18 Singapore Law Review 15 at 50–53.
101 Principally, in the 1960s and 1970s.
102 [1980] AC 827.
103 See the Singapore Court of Appeal decision of Sun Technosystems Pte Ltd v Federal Express Services (M) Sdn Bhd [2007] 1 SLR 411 and the Singapore High Court decision of Emjay Enterprises Pte Ltd v Skylift Consolidator (Pte) Ltd (Direct Services (HK) Ltd, Third Party) [2006] 2 SLR 268.
104 See, eg, the Hong Kong Court of Appeal decisions of OTB International Credit Card Ltd v Au Sai Chak Michael [1980] HKC 219; Kalimantan Timbers Co (A Firm) v Mighty Dragon Shipping Co SA [1980] HKC 228; and Yeu Shing Construction Co Ltd v Pioneer Concrete (HK) Ltd [1987] 2 HKC 187, as well as the Hong Kong Court of First Instance decision of Carewins Development (China) Ltd v Bright Fortune Shipping Ltd [2006] 4 HKC 1 and the Hong Kong District Court decision of Yu Fat Piece Goods Co Ltd v Peter Mercantile Co Ltd [2006] HKCU 459. Reference may also be made to Hall, above n 18, pp 460–464.
105 See Lord Diplock, above n 74, at 377.
106 See above n 14.
107 (1889) 14 PD 64 at 68.
108 [1939] 2 KB 206 at 227 (affirmed, [1940] AC 701).
109 Above n 7, at [33].
110 Ibid, at [36] (original emphasis); and see generally ibid, at [34]–[40].
111 Above n 7. For Hong Kong decisions, see, eg, the Hong Kong Court of Final Appeal decision of Bewise Motors Co Ltd v Hoi Kong Container Services Ltd [1998] 4 HKC 377, as well as the Hong Kong Court of Appeal decisions of Lo Kwai Chun (Administratrix of the Estate of Cheung Hoi, Decd) v Hong Kong Oxygen & Acetylene Co Ltd [1980] HKC 123 and Luk Wing Chin t/a Signtech Co v Chan Chi Shing [2008] HKCU 887. Reference may also be made to the Hong Kong Court of Appeal decision of Faranah Ltd v Cherry Garments Co Ltd [2005] HKCU 907 (where Le Pichon JA referred to the composite test in the Australian Privy Council decision of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1978) 52 ALJR 20, which, however, Stock JA interpreted as embodying the ‘officious bystander test’(although, it should be mentioned, the learned judge does refer to the concept of business efficacy as well)). See also generally Hall, above n 18, ch 9.
112 Above n 7, at [41] (original emphasis).
113 Ibid, at [41] (original emphasis).
114 Ibid, at [44] (original emphasis). And cf, in the Hong Kong context, the Hong Kong Court of Final Appeal decision of Twinkle Step Investment Ltd v Smart International Industrial Ltd [1999] 4 HKC 441 (affirming Smart International Industrial Ltd v Twinkle Step Investment Ltd [1999] 1 HKC 767). Reference may also be made to Hall, above n 18, pp 394–403.
115 And cf with regard to the analogous situation vis-à-vis the distinction between unconscionability as a doctrine and as a rationale (see below n 159).
116 See Smith, above n 28, at 402. See also the Great Peace Shipping case, above n 30, especially at [73] and [82].
117 Above n 20. This translation was, in fact, cited in a treatise which the learned judge wrote himself; see C Blackburn A Treatise on the Effect of the Contract of Sale; On the Legal Rights and Property and Possession in Goods, Wares and Merchandize (1845) p 173. The learned judge also referred to Justinian's Digest. See also AWB Simpson ‘Innovation in nineteenth century contract law’ (1975) 91 Law Quarterly Review 247 at 271. Professor Simpson also refers to the earlier (also English) decision of Hall v Wright (1858) El Bl & El 746 (at 765) which, in his view, ‘may well have been [the] immediate source of the device [of the implied term] used’ in Taylor v Caldwell (see Simpson, above at 270). Interestingly, Pothier's views were also considered in Hall v Wright, albeit not by all the judges. On the influence of Pothier generally, see PS Atiyah The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) pp 399–400. Reference may also be made to WW Buckland ‘Casus and frustration in Roman and common law’ (1932–1933) 46 Harvard Law Review 1281, especially at 1287–1288 and MacMillan, above n 19, pp 193–194.
118 And see generally Phang, above n 23, at 284–285.
119 See generally Phang, ‘On linkages in contract law – mistake, frustration and implied terms reconsidered’, above n 13, at 481–484.
120 See the main text accompanying above n 118.
121 See generally Phang, ‘On linkages in contract law – mistake, frustration and implied terms reconsidered’, above n 13, at 484–486.
122 See ibid, at 485–486; and, insofar as ‘terms implied in law’ are concerned, see the main text accompanying above n 114.
123 See ibid, at 486.
124 See generally Smith, above n 28, as well as generally above n 28.
125 See also the reference by Diplock LJ in the Hongkong Fir case to the concept of the implied term (‘in fact’), above n 80.
126 See generally Phang, ‘Undue influence – methodology, sources and linkages’, above n 13, at 563–574.
127 See, eg, H Tjio ‘Undue influence, unconscionability and good faith’ (1996) 8 Singapore Academy of Law Journal 429 at 430 and 433; D Webb ‘A proposed decision-making process for oppressive credit contracts’ [1997] New Zealand Law Review 394 at 418; D Capper ‘Undue influence and unconscionability: a rationalisation’ (1998) 114 Law Quarterly Review 479 at 480, 484 and 487; J Phillips ‘Setting aside guarantees: another approach’ (2002) 2 Oxford University Commonwealth Law Journal 47 at 51; FR Burns ‘Elders and undue influence inter vivos: lessons from the United Kingdom?’ (2003) 24 Adelaide Law Review 37 at 49; M Pawlowski ‘Unconscionability as a unifying concept in equity’ (2001–2003) 16 Denning Law Journal 79 at 87; and R Bigwood ‘Curbing unconscionability: Berbatis in the High Court of Australia’ (2004) 28 Melbourne University Law Review 203 at 225.
128 See Capper, ibid.
129 See, eg, R Bigwood Exploitative Contracts (Oxford: Oxford University Press, 2003) p 230; EP Ellinger, E Lomnicka and RJA Hooley Modern Banking Law (Oxford: Oxford University Press, 3rd edn, 2002) p 117 (although the citation appears to be absent in the 4th edn (Oxford: Oxford University Press, 2006)!); M Pawlowski and J Brown Undue Influence and the Family Home (Oxford: Cavendish, 2002) p 89; P Cartwright Banks, Consumers and Regulation (Oxford: Hart Publishing, 2004) p 160; H MacQueen and R Zimmerman (eds) European Contract Law: Scots and South African Perspectives (Edinburgh: Edinburgh Studies in Law, 2006) p 168; OO Cherednychenko Fundamental Rights, Contract Law and the Protection of the Weaker Party (Munich: Sellier, European Law Publishers, 2007) p 345; and N Enonchong Duress, Undue Influence and Unconscionable Dealing (London: Sweet & Maxwell, 2006) p 323.
130 [2000] 2 All ER (Comm) 221.
131 Ibid, at 233. Though cf the (also) English Court of Appeal decision of Irvani v Irvani [2000] 1 Lloyd's Rep 412 at 425, where a distinction is drawn between the doctrine of undue influence, on the one hand, and that of unconscionability, on the other – but, it should be added, without any substantive analysis as such.
132 (1993) 32 NSWLR 50.
133 Ibid, at 107.
134 For another interesting article – albeit not from the specific standpoint of linkages as such – see Tjio, above n 127. Though cf, by the same author, ‘O'Brien and unconscionability’ (1997) 113 Law Quarterly Review 10.
135 But cf P Birks and C Nyuk Yin ‘On the nature of undue influence’ in J Beatson and D Friedmann (eds) Good Faith and Fault in Contract Law (Oxford: Clarendon Press, 1995) ch 3.
136 [2002] 2 AC 773; noted, inter alia, by A Phang and H Tjio ‘The uncertain boundaries of undue influence’ [2002] Lloyd's Maritime and Commercial Law Quarterly 231.
137 See, in particular, the judgment of Lord Nicholls of Birkenhead in the Etridge case, above n 136, especially at [13]–[18], where the learned Law Lord drew a distinction between situations where the courts adopt a ‘sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected’ and other situations where such relationships do not exist; (which correspond to class 2A and class 2B undue influence, respectively); there existed (in respect of the former (class 2A undue influence) situation) ‘a different form of presumption’ which is irrebuttable and which is, in fact, dealt with in the main text immediately following. The learned Law Lord also emphasised a very different type of presumption, which related to the evidential nature of the presumption of undue influence (under the general rubric of class 2 (or presumed) undue influence), which presumption is a rebuttable one (as to which, see generally Phang and Tjio, above n 136, at 232–234, and which is the presumption that is referred to in this lecture). The difference between the two presumptions is perceptively and succinctly summarised in a leading textbook as follows (see E Peel Treitel's Law of Contract (Oxford: Sweet & Maxwell, 12th edn, 2007) p 452):‘The “irrebuttable” presumption is not itself a ground for relief: it is merely a way of establishing one of the basic facts of the “evidential” presumption.... The irrebuttable presumption relates to the existence of the influence, the rebuttable evidential presumption to its exercise. The distinction is obscured by the unfortunate use of the ambiguous phrase “presumption of undue influence”, which is capable of referring to either or both of these operations.’ (original emphasis).
138 See the Etridge case, above n 136, at [18]. However, the problems with regard to the source of such an irrebuttable presumption remain; see the main text accompanying below nn 147–149.
139 See ibid. See also Phang and Tjio, above n 136, at 233.
140 Cf also Peel, above n 137, p 454.
141 See, eg, per Lord Hobhouse of Woodborough, above n 136, at [105] and [107] and per Lord Scott of Foscote, ibid, at [151]–[153] and [157]–[161].
142 See, generally, Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 563–565.
143 [1993] 3 WLR 802.
144 Overruling the English Court of Appeal decision of Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, which had held to the contrary.
145 See, generally, Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 562. Insofar as the last-mentioned point made with respect to the Etridge case is concerned, see also generally Phang and Tjio, above n 136, at 234–236; see, further, below n 186.
146 See Phang, ‘Undue influence – methodology, sources and linkages’, above n 13, at 562.
147 See ibid, at 564, n 44, and submitting that, in this particular regard, the English decision of Goldsworthy v Brickell [1987] Ch 378 ought not to be followed.
148 See ibid.
149 See ibid, at 564–565.
150 See ibid, at 565.
151 See ibid.
152 See also ibid.
153 And moving beyond the linkages within the doctrine of undue influence itself.
154 See generally Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 565–574. For the Hong Kong position, see generally Hall, above n 18, ch 14.
155 See the English High Court decision of Occidental Worldwide Investment Corp v Skibs A/S Avainti, Skibs A/S Glarona, Skibs A/S Navalis (The ‘Siboen’ and the ‘Sibotre’) [1976] 1 Lloyd's Rep 293, as well as J Beatson ‘Duress as a vitiating factor in contract’ [1974] Cambridge Law Journal 97. And for the Hong Kong position, see, eg, Hall, above n 18, pp 575–593.
156 See Goldsworthy v Brickell, above n 147.
157 See, eg, the works cited in Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 566, n 48.
158 See ibid, at 566 (original emphasis).
159 And see, eg, A Phang ‘The uses of unconscionability’, (1995) 111 Law Quarterly Review 559 at 561–562. For a recent perceptive as well as thought-provoking article surveying the role of unconscionability in the law of equity, see H Delany and D Ryan ‘Unconscionability: a unifying theme in equity?’ [2008] Conveyancer and Property Lawyer 401. Indeed, some of the ideas and arguments in this article certainly warrant further exploration along the lines as well as general approach adopted in the present lecture.
160 See the leading Australian High Court decision of Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. Reference may also be made to the (also) Australian High Court decisions of Blomley v Ryan (1954–1956) 99 CLR 362 and Louth v Diprose (1992) 175 CLR 621.
161 See, eg, the British Columbia Court of Appeal decisions of Morrison v Coast Finance Ltd (1965) 55 DLR (2d) 710 and Harry v Kreutziger (1978) 95 DLR (3d) 231. Reference may also be made to the Report of the Ontario Law Reform Commission, Report on Amendment of the Law of Contract (1987) ch 6.
162 See, eg, the Hong Kong Court of Final Appeal decision of Ming Shiu Chung v Ming Shiu Sum [2006] 2 HKLRD 831 (a general reference only) and the Hong Kong Court of Appeal decisions of Semana Bachicha v Poon Shiu Man [2000] 3 HKC 452 and Lo Wo v Cheung Chan Ka Joseph [2001] 3 HKC 70 (affirming Lo Wo, Lo Tai and Lo Lan v Cheung Chan Ka, Joseph (also known as Cheung Chan Ka), Bond Star Development Limited [2000] HKCU 436). See also generally the relevant decisions cited below at nn 166, 171 and 175, as well as Hall, above n 18, pp 621–642 (which also includes, at pp 633–642, a discussion of the Hong Kong Unconscionable Contracts Ordinance (Cap 458) as well as the relevant case-law).
163 See, generally, Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 567–570. And, on why the doctrine of unconscionability ought to be preferred to that of good faith, see Phang, above n 8, especially at 186–188. Reference may also be made to the recent Singapore Court of Appeal decision of Ng Giap Hon v Westcomb Securities Pte Ltd [2009] 3 SLR 518, where an attempt to imply a duty of good faith on the basis of a ‘term implied in law’ was rejected (and on ‘terms implied in law’ generally, see the main text accompanying above n 114).
164 See, generally, Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 570–572.
165 See the main text accompanying above nn 6–8.
166 [2005] HKCU 971.
167 Ibid, at [206].
168 See A Phang ‘Economic duress: recent difficulties and possible alternatives’ [1997] Restitution Law Review 53.
169 Above n 166, at [206] (emphasis added).
170 See the main text accompanying above nn 156–158.
171 See Esquire (Electronics) Ltd v The Hong Kong and Shanghai Corporation Ltd [2006] HKCU 1705.
172 Ibid, at [167] and [240]–[242], per Stock JA and Tang JA, respectively.
173 Ibid, at [156].
174 See also above n 159.
175 [2002] HKCU 575.
176 Ibid, at [141].
177 (1983) 151 CLR 447.
178 See Phang ‘Undue influence – methodology, sources and linkages’, above n 13, at 569–570.
179 See above at nn 130 and 132, respectively.
180 See above nn 127 and 129.
181 Above n 136. See also generally Hall, above n 18, pp 593–621 with regard to the position in Hong Kong.
182 [2002] 1 HKC 83. See also a decision of the same judge in the Hong Kong Court of First Instance decision of Wing Hang Bank Ltd v Lau Kam Ying [2002] 2 HKC 57.
183 See, eg, the Hong Kong Court of Final Appeal decision of Li Sau Ying v Bank of China (Hong Kong) Ltd [2005] 1 HKLRD 106 and the Hong Kong Court of Appeal decision of Bank of China (Hong Kong) Ltd v Leung Ngai Hang t/a Masterpiece Interior Design [2006] HKCU 78.
184 See per Lord Nicholls of Birkenhead, above n 136, at [8]. Cf also per Lord Bingham of Cornhill, ibid, at [3].
185 See per Lord Hobhouse of Woodborough and Lord Scott of Foscote (with regard to the former) and per Lord Clyde (with regard to the latter), ibid,, at [107], [161] and [92], respectively. And see generally Phang and Tjio, above n 136, at 233–234.
186 See generally Phang and Tjio, ibid, at 241–243. Though cf with regard to the requirement of manifest disadvantage, where the House in the Etridge case view that requirement as performing a sifting function with respect to presumed undue influence by constituting a catalyst for the invocation of the evidential presumption (see generally Phang and Tjio, ibid, at 234–236; see also above n 145).
187 See also the main text to above nn 171 and 172.
188 See, eg, the Hong Kong Court of Final Appeal decision of Bank of China (Hong Kong) Ltd v Fung Chin Kan [2002] HKCU 1416 as well as the cases discussed above at nn 166, 171 and 175.
189 And see per Lord Steyn in the House of Lords decision of Smith New Court Securities Ltd v Citibank NA [1996] 3 WLR 1051 at 1072–1073.
190 The remaining categories being negligent misrepresentation at common law (the seminal decision being that of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465) and ‘statutory negligence’ pursuant to s 2(1) of the (Singapore) Misrepresentation Act (Cap 390, 1994 revsd edn) (which is the UK Misrepresentation Act 1967 (Cap 7), received via the Singapore Reception of English Law Act (Cap 7A, 1994 revsd edn)).
191 See, eg, the English Court of Appeal decision of Hammond v Osborn [2002] EWCA Civ 885 (where it was held that the presumption under class 2 undue influence would apply even if the conduct of the party against whom undue influence was alleged was unimpeachable (which was not, in any event, the case on the facts before that court)).
192 See also generally B Dickson ‘The contribution of Lord Diplock to the general law of contract’ (1989) 9 Oxford Journal of Legal Studies 441.
193 See also above n 10.