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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.
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
- Liability in restitution where contracts fail to materialise.
- Pre-contractual misleading or deceptive conduct
- Pre-contractual liability in tort
Intended learning outcomes
A student who has successfully completed this subject should be able to:
- Critically examine, analyse, interpret and assess the effectiveness of the relevant legal, equitable and statutory doctrines
- Engage in scholarly debate regarding emerging and contemporary issues in the field
- Have an advanced understanding of the different bases of liability and the distinctions and relationships between them
- Generate critical and creative ideas relating to the different bases of liability, and to critically evaluate existing legal theories, principles and concepts with creativity and autonomy
- Independently examine, research and analyse the existing and emerging legal issues concerning each of the different bases of pre-contractual liability
Last updated: 24 January 2023