Modern Approach (flexibility & fairness)

Question 1

Principles of the modern approach

Answer 1

Flexible standards that is accompanied with broad discretions at the point of the application by the court

Question 1

Purpose of the modern approach

Answer 1

Purpose of contract law is to achieve fair and just outcomes that meet the reasonable expectations of honest people (common sense)

Question 2

Three examples of the modern approach

Answer 2

Practical benefit approach to variation
- Roffrey bros

Battle of forms global approach
- Cospak, reconcile terms for harmonious result

Expansive approach to interpretation
- Subsequent conduct and prior negotiations (Bathurst)

Question 3

Critiques of the modern approach

Answer 3

Smilie
- Incentive to appeal stronger
- Litigation more expensive with more complexities
- Parties do not know where they stand without going to court

Question 4

How can we reconcile the approaches

Answer 4

Where parties on an equal bargaining strength and sophistication makes sense to have more firm certain rules

Consumers, employees, non-commercial contracts should be subject to a more flexible individualised approach