Precontractual Liability (LAWS90027)

A considerable amount of litigation is concerned with legal responsibility for things said and done during contract negotiations, whether or not those negotiations result in a formal contract. Liability can arise from promises, representations and non-disclosure, and can arise by way of unintended contracts, the addition of unintended contract terms, through different forms of estoppel, under statute, in tort or in restitution. All of the relevant causes of action are at various points complex and uncertain. This subject will involve an advanced study of the circumstances in which those causes of action arise, their remedial consequences and the relations and distinctions between them. It will focus particularly on recent developments in Australian and English law. The lecturers have written extensively on the topics covered by the subject, and their published work has been widely cited and discussed by the courts in Australia and the United Kingdom.

Principal topics include:

• Preliminary agreements and ‘subject to contract’ clauses
• The incorporation of contract terms, the parol evidence rule and ‘entire agreement’ or merger clauses
• Pre-contractual promissory estoppel, proprietary estoppel and estoppel by convention
• Pre-contractual misleading or deceptive conduct
• Pre-contractual liability in tort
• Liability in restitution where contracts fail to materialise.