Contract Law in Commonwealth Countries: Uniformity or Divergence?
The Honourable Judge
of Appeal Andrew Phang & Goh Yihan
(2019) 31 SAcLJ 170
The present article examines – through a consideration of developments in the most recent and most topical areas of contract law – whether and in what areas the contract law of various Commonwealth jurisdictions has diverged (in the main, from English law) and, more importantly, why such divergence has occurred. It also considers areas where there has been both flux and divergence in the sense that there is both uncertainty in development as well as divergence between jurisdictions (notably, in discharge by breach of contract, unconscionability as well as emerging categories of contractual damages). The article also attempts, in explaining why the respective areas developed in the way they did, to draw out some normative threads that might simultaneously furnish Commonwealth courts with legal methodology as well as tools for developing the law in their respective jurisdictions (bearing in mind the fact that these normative threads do not (and cannot) operate in a mechanistic fashion).