Part of the ANU College of Law Research Seminar Series 2020 series
The sanctity of contracts is commonly referenced in public discourse, but the reality is that contracts are often malleable documents open to renegotiation and sometimes even vitiation. To navigate the boundaries between enforcing an existing deal and permitting variation, contract law uses a series of basic tools including consideration and conscience. The efficacy of these legal tools will likely be tested by the black swan event of the coronavirus. The reality forced upon us by the coronavirus is that contracts now need to be renegotiated, reviewed, monitored and disputed in an environment where neither party can easily predict future events. The looming possibility of a second lockdown in parts of Australia underlines this problematic reality.
Using the examples of the higher education sector and the National Rugby League, I argue that both consideration and conscience are inadequate tools in the face of the coronavirus pandemic. Instead, Australian contract law should revisit and reconsider its rejection of a freestanding principle of good faith as a regulator of contractual relations.