Issues of Principle in Assessing Contract Damages

Posted: Sept 17, 2014

J W Carter, W Courtney, G Tolhurst, 'Issues of Principle in Assessing Contract Damages' (2014) 31 JCL86


The facts in Clark v Macourt are deceptively simple. A sale of a business (a medical fertility practice) includes frozen sperm as part of the transferred assets. No part of the sale price is apportioned distinctly to the sperm. It turns out that much of the sperm is unusable because the associated documentation maintained and furnished by the vendor is inadequate. This constitutes a breach of a warranty in the contract of sale. The purchaser incurs significant costs in acquiring replacement sperm from overseas. (The total replacement cost is a little over 3 times the price paid for the entire business). The purchaser begins, and is expected to continue, to recoup that expenditure from patients to whom the sperm is subsequently supplied in connection with fertility services. The purchaser claims as damages the total replacement cost.

Recent Paper Presentation

Posted: May 26, 2014

J W Carter, 'Good Faith in Contract: Why Australian Law is Incoherent', A paper presented at the Bar Association of Queensland 2014 Annual Conference, 8 March 2014


This paper assesses the present state of good faith as a concept used in the resolution of contractual disputes under Australian law. Its thesis is that the current law is incoherent due to the wide variety of views expressed in the cases and the failure to integrate good faith within principles governing the interpretation of contracts and the implication of terms. The specific contexts to which the thesis is applied are the performance and termination of contracts.

Upcoming Paper Presentation

Posted: May 26, 2014

J W Carter, 'The Construction of Commercial Contracts, University of Auckland, 5 May 2014.

Upcoming Seminars

Posted: May 26, 2014

J W Carter, 'The Doctrine of Consideration', Commercial Law Association of Australia, Sydney, 12 May 2014.

J W Carter, 'The Doctrine of Privity of Contract', Commercial Law Association of Australia, Sydney, 19 May 2014.

Most recent book

Posted: May 26, 2014

J W Carter, The Construction of Commercial Contracts, Hart Publishing, Oxford, 2013.

This book adopts a principled approach to the law applied in the construction of commercial contracts. This approach is presented as part of a coherent theory of the law of contract construction which makes a unique contribution to scholarship and understanding of the most important aspect of the practice of commercial lawyers.

Recently Published Articles

Posted: May 26, 2014

J W Carter, 'Context and Literalism in Construction' (2014) 31 JCL 100


The role of 'context' in the construction of contracts is by definition fundamental. Nevertheless, a survey of the approach to the concept in England, Australia, Singapore and the United States reveals a surprising degree of diversity. As might be expected, in jurisdictions which rely on a narrower concept of context there is a predilection towards literalism in construction.

Wayne Courtney and J W Carter, 'Implied Terms: What Is the Role of Construction?' (2014) 31 JCL 151


In Attorney General of Belize v Belize Telecom Ltd, the Privy Council reconceptualised the process of implying terms 'in fact' into contracts. Until then, the conventional understanding had been that factual implication was a matter of contract doctrine. A term was implied when it satisfied certain well-known tests such as the business efficacy test or the 'officious bystander' test. In Belize, factual implication was said to be a matter of elucidating the meaning of the contract: that is, it is merely part of the ordinary process of construction. In this article, we examine the relationship between 'implication' and 'construction', and between 'construction' and contract doctrine. We argue that the reasoning in Belize did not properly distinguish these concepts. The process of factual implication is distinctive; it cannot be treated simply as a matter of meaning, to be determined by ordinary construction principles.

J W Carter, 'The Remedy of Rectification' (2013) 27 CLQ 10

J W Carter, Wayne Courtney, Elisabeth Peden, Andrew Stewart and G J Tolhurst, 'Contractual Penalties: Resurrecting the Equitable Jurisdiction' (2013) 30 JCL99

Courtney, Wayne and J W Carter, 'Debts, Liquidated Sums and the Enforcement of Claims under Guarantees and Indemnities' (2013) 30 JCL 70

J W Carter, 'Discharge as the Basis for Termination for Breach of Contract' (2012) 128 LQR 283

J W Carter and Wayne Courtney, 'Indemnities Against Breach of Contract as Agreed Damages Clauses' [2012] JBL 555