Not only is the Scottish Law Commission (SLC) undertaking a comprehensive review of Scots Contract Law in light of the Draft Common Frame of Reference (DCFR) of Principles, Definitions and Model Rules of European Private Law, but the Australian Attorney-General, Nicola Roxon, has just released a discussion paper to explore the scope for reforming Australian Contract Law.

The most recent discussion paper produced by the SLC discusses contract formation for the electronic age (DP 154, March 2012, pdf). It follows an earlier discussion paper with interpretation of contract (DP 147, Feb 2011, pdf), and a joint project (pdf) with the Law Commission of England and Wales on the proposed Common European Sales Law. Moreover, the SLC intend to publish further discussion papers, including one in the near future on remedies for breach of contract. Chapter 9 of the contract formation discussion paper contains 51 questions, and the Appendix contains some draft statutory provisions, drawn from various European texts.

The Australian review is equally as ambitious. The discussion paper (doc | pdf) aims to improve the efficiency and effectiveness of commercial and consumer transactions; and it therefore considers whether Australian contact law could be reformed to:

• enhance accessibility, certainty and simplicity
• set standards of conduct
• better support innovation and participation in the digital economy
• better meet the evolving needs of businesses particularly small and medium businesses
• make the law more elastic to promote long-term relationships, and
• harmonise and internationalise contract law.

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This is one of Stu’s Views wonderful law & lawyer cartoons.

Bonus 1: Have a look at the Christmas contract letters (the link is to the first of a funny series), between Bizzles LLP, representing Mr Timothy Taylor (referred to in the agreement as “Little Timmy”), of the one part, and Donner, Blitzen and Rudolf LLP, representing the Santa Claus Group, of the other part, concerning an agreement between for the delivery of Christmas presents.

Bonus 2: The Law & Humanities blog has collected a few other seasonal claims including Santa. Enjoy! And merry Christmas.…

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During the property boom, lots of banks made lots of loans to lots of property developers. Then, as the market began to tighten, many of the banks made alternative arrangements with some of their developer clients. Now that the property market has collapsed, banks are seeking to enforce the terms of loans as against developers, and the developers are relying on the alternative arrangements by way of defence. An Cumann Peile Boitheimeach Teorenta v Albion Properties Ltd & Ors [2008] IEHC 447 (07 November 2008) is one such case (see also the legal issues in Helsingor Ltd v Walsh [2010] IEHC 54 (05 March 2010)).

I learn via the very helpful new blog Stare Decisis Hibernia – a blog concerned with recent decisions of the Irish Superior Courts – that another such case has recently been decided by the High Court. ACC Bank plc v Kelly [2011] IEHC 7 (10 January 2011) turned largely on its facts, and Clarke J held that there was no binding agreement in place or clear understanding between the parties that the bank would not call in the loan. The defendants had argued that the alternative arrangement could be relied upon on the basis of an estoppel or enforced as a contract supported by consideration, but, in the course of holding that those claims failed on the facts, Clarke J made some important observations about when forbearance to sue constitutes good consideration (the underlined words are his emphasis):

7.9 So far as the case in promissory estoppel is concerned, I have already indicated that I am not satisfied that any concluded arrangement (even if it be short of a contract) had been come to between the parties such as could have grounded a case in promissory estoppel.

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