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Jones, M A (1971) The role of the Australian state housing authorities in low income housing, Unpublished PhD Thesis, , Australian National University.
Rich, J R (1993) Victorian building workers and unions 1856-90, Unpublished PhD Thesis, , Australian National University.
Seek, N H (1981) Modification of the existing housing stock: A study of housing adjustments through home improvement, Unpublished PhD Thesis, , Australian National University.
Stretton, A (1977) The building industry and employment creation in Manila, the Philippines, Unpublished PhD Thesis, , Australian National University.
Yin, C N (1981) The doctrine of fundamental breach in contract law, Unpublished PhD Thesis, , Australian National University.
- Type: Thesis
- Keywords: contract law; liability; contract terms; legislation
- ISBN/ISSN:
- URL: https://www.proquest.com/docview/2606898993
- Abstract:
The doctrine of fundamental breach for which Karsales v. Wallis, Suisse Atlantique and, more recently, Photo Production v. Securicor Transport are key decisions, is one of the most discussed subjects in English contract law. It might be thought that all there is to be said about fundamental breach has already been said. This is not far from the truth if investigation of it merely continues the all too familiar debate whether the doctrine represents a rule of law rather than a rule of construction. On further scrutiny, however, there is still very much amiss in our understanding of fundamental breach. In particular, we do not seem to have really come to grips with what we shall see to be the crucial problem in fundamental breach, namely: when is a performer under a contract liable for his own misperformance notwithstanding the presence of an exception clause prima facie exempting him from liability?Here I shall try to show that fundamental breach has been the means by which courts have marked out various types of misperformance, mainly those within the control of the performer, for which liability cannot be excused by the incorporation of an exception clause . In other words, even an exception clause does net always imply that a party has necessarily accepted all the risks of a contract , including those of misperformance which the clause attempts to cover . Fuller analysis of the cases shows a differentiated scale of misperformance against which a performer cannot protect himself if they are avoidable or culpable. These indicia of culpability, which bear only a vague resemblance to notions of moral reprehensiveness or fault in tort law , also have immense importance for an understanding of fundamental breach .No study of fundamental breach would be complete without due consideration of the notions of reasonableness and unconscionability, which have recently come to the fore, in part because of the advent of legislation as s . 2 : 302 of the American Uniform Commercial Code and the English Unfair Contract Terms Act 1977. Even so, the notions of fundamental breach on the one hand and reasonableness and unconscionability on the other, remain, as we shall see, residually distinct . This thesis deals first with fundamental breach and then with unconscionability. Chapter I puts the contemporary notion of fundamental breach in a historical perspective. Earlier notions are contrasted with it to d~fine better the central problem of the doctrine . Chapter II sketches what we shall call a theory of risks of avoidable misperformance or, more briefly, performance-related risks. This theory, it is submitted, explains the general design and operation of fundamental breach. It will be shown that by the time of Karsales v. Wallis there was already in the law a discernible pattern of differentiated risks the liability for which could not be excused in advance by the use of an exception clause. For this purpose, the two progenitors of the doctrine of fundamental breach are discussed in some detail and its juristic basis explained. In Chapter III, three representative theories, the 'core theory', Coote's theory of the function of exception clauses and Lord Devlin's views of a fundamental term are taken to task. Chapter IV is devoted to a formal turning point in the career of fundamental breach, brought about by the Hous e of Lords' decision in Suisse Atlantique; yet it soon becomes apparent that this decision is not quite the pinnacle of the doctrine it is often thought to be. Chapter V moves to the post-Suisse Atlantique cases which raise extremely difficult questions relating to avoidable misperformance and culpable breach. An attempt is made to extrapolate from them a subtle pattern of principle revealing different degrees of contractual behaviour and, in particular, misperformances which can be exempted from liability at the one extreme and misperformances which cannot at the other . Chapters VI , VII and VIII concentrate on the relations between fundamental breach and the two other devices of dealing with exception clauses, the notions of reasonableness and unconscionability .