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The objectives are:
1. Firstly, to introduce fundamental contract principles and some relevant theoretical
approaches that may assist a better understanding of the law of contract;
2. Secondly, to examine the nature and scope of contract law by reference to subject matter;
3. Thirdly, to introduce some analytic approaches that may be applied when considering
how the law of contract functions;
4. Fourthly, to consider the impact of good faith, honest performance and the policy
construction role of the judiciary.
By the end of this module students should be able to:
1. Demonstrate a good understanding of the fundamental principles and theoretical
bases in support of the validity of contracts;
2. Better appreciate the pervasive impact of contract law, and why it is critical to have a
sound understanding of how it functions;
3. Critically examine whether the prevailing approach of the Commonwealth Caribbean
judiciary to the interpretation of contracts comports with what the best interest of
justice demands;
4. Better engage in policy and proposals for possible reform debates concerning the
function of contract law in the Commonwealth Caribbean.
Whether oral or in writing or partly oral and partly in writing, every commercial
arrangement, if it is to be worthwhile, must be supported by an agreement between the
parties. This agreement is properly called a contract. The contract will establish the
presumed, even if not clearly expressed, intention of the parties and is the basis on which

enforcement of obligations may be secured with assistance, if required, from national

The contract incorporates myriad fundamental principles, including perhaps most
importantly that every person having legal capacity so to do has the freedom to agree
whatever is desired in commercial dealings unless that desire is prohibited as a matter of
law. This concept finds expression in the doctrine of fundamental freedom of contract.
Here we will consider:
1. General Principles of Contract
2. Contractual Theory
3. Subject Matter of Contract
4. Approaches to Analysing Contract
R Stone & J Devenney, The Modern Law of Contract (11th Edn) 2015 Routledge, chp 1
DP Weber, Restricting the Freedom of Contract: A Fundamental Prohibition, (2014)
Yale Human Rights and Development Journal, Vol. 16, Issue 1, Article 2. Available at:
C Edwards, Freedom of Contract and Fundamental Fairness: The Tug of War
Continues, (2009) Marquette Law Scholarly Commons, Faculty Publications Paper 281.
W Swain, The Classical Model of Contract: the Product of a Revolution of Legal
Thought? (2010) 30 Legal Studies 513
H Beale & T Dugdale Contracts Between Businessmen: Planning and the Use of
Contractual Remedies (1975) 2 Brit J Law & Society 45
The law presumes that persons enter into a contract intending to perform it as agreed.
Where agreed performance is in question, the courts will often be called upon to interpret
the contract so as to objectively determine what was in fact agreed by the parties. If a
breach of performance is found, the court will then grant a remedy in favour of the
aggrieved party.

The general principle set out above is well established. What is not as well established are
the factors that should be considered by the court when seeking to determine the
performance obligations of the parties, and the extent to which the court should engage in
purposeful and interest of justice oriented judicial policy construction.
Here, we will consider aspects of:
1. Good Faith
2. Honest Performance
3. Equity and Judicial Policy Construction
SJ Burton Breach of Contract and the Common Law Duty to Perform in Good Faith
(1981) 94 Harv. L. Rev. 369
D Campbell, Good Faith and the Ubiquity of the Relational Contract (2014) 77 Mod.
L. Rev. 475
EA Farnsworth, Good Faith Performance and Commercial Reasonableness Under the
Uniform Commercial Code (1963) 30 U. Chicago L. Rev. 666
A Mason, Contract, Good Faith and Equitable Standards in Fair Dealing (2000) 116
Law Q. Rev. 66
SK OBryne, Good Faith in Contractual Performance: Recent Developments (1995) 74
Can. Bar Rev. 70
Harry Bhasin v Larry Hrynew [2014] 3 S.C.R. 494
Aleyn v Belchier (1758), 1 Eden 132, 28 E.r. 634
Mills v Mills (1938) 60 C.L.R. 150 (H.C.A.
Mellish v Motteux (1792), Peake 156, 170 E.R. 113
Carter v Boehm (1766), 3 Burr. 1905, 97 E.R. 1162
Interfoto Picture Library Limited v Stiletto Visual Programmes Limited [1988] QB 433,
[1988] 1 All ER 348

Attorney General of Belize v Belize Telecom Limited [2009] UKPC 10, [2009] 1 WLR
Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 (QB)
1. Critically consider the decision in Bhasin v Hrynew by reference to classical contract
theory. How should the Jamaican courts approach the now established new duty of
honest performance in contract dealings?
Preferred Approach
Students should be divided into three randomly selected groups Counsel for the
Claimant, Counsel for the Defendant, and Judges.
Counsel for the Claimant will together prepare arguments in support of the decision.
They will select one to argue on behalf of the group. Counsel for the Defendant will
adopt a similar approach to preparation and hen argue against the decision. The Judges
will prepare a decision in draft and after hearing the arguments render a decision.
Preparation of Submissions and Draft Judgement must be done before the Tutorial.
The decision of the Judges will become the subject of a short general de-briefing and
more general discussion will follow.
The PRES system of argument is to be applied P (Position taken), R (Reason for
adopting position), E (Evidence in support), S (Summary of arguments).
Time allocations:
Submission of Claimant 10 minutes
Submission of Defendant - 10 Minutes
Rebuttal of Claimant 5 Minutes
Decision by Judges 10 Minutes
De-briefing and General Discussion - 15 Minutes
NB: Each student is required to participate, and prepared Submissions and Draft
Judgement must be handed in.

Dr. CP Malcolm, FCIArb.

January 2016