Should the Courts be Pragmatic when Deciding Commercial Contract Cases? A Study of Practical Benefit
Presented by Dr Mark Giancaspro, The University of Adelaide, South Australia
Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 is one of the most controversial decisions in the modern history of Anglo-Australian contract law. It was a commercial contract case, the outcome of which was commercially sensible and morally just, though the means employed by the English Court of Appeal to reach that outcome was dubious. The court’s reasoning reflects its attempt to avoid the controlling influence of precedent where this would have resulted in an objectively unfair and irrational consequence for the plaintiff. Using this case as an exemplar, the seminar queried whether the courts should be so pragmatic when deciding commercial contract cases. It was argued that, while a pragmatic approach may be prone to misuse and inconsistency and potentially cause as many problems as it resolves, it was still desirable for its capacity to temper the stout rigor of precedent and conform with the expectations of commercial parties.
Dr Mark Giancaspro is a Lecturer and practising commercial lawyer at the University of Adelaide Law School. He holds an honours degree in Laws and Legal Practice from Flinders University and a PhD from the University of Adelaide. His legal employment background and research interests are primarily commercial, with issues in contract law and its applications being his principal theme. Mark teaches in contract law, commercial law, operational commercial law and sports law, and has published widely on matters including issues with the formation and renegotiation of contracts, the doctrine of consideration, and smart contracts. He currently practices through the Law School’s Legal Advice Service in the Adelaide Magistrates Court and is a member of the Australian Commercial Law Association as well as the Adelaide University Research Unit on Military Law & Ethics (RUMLAE) commercial law division.