Demystifying Implied Terms

Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive\u27. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests\u27 for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two ‘theses’ well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described

The Past, Present, and Future of Law Reform in Canada

The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future

Developments in Contract Law: The 2021-2022 Term — The Enduring Allure of Freedom of Contract

A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain Freedom of Contract. Notably, among the significant constraints are where the Freedom is complicated by an asymmetric distribution or opposing concerns about loss of wider or future freedom. Freedom is not the only value to be reckoned with. However, its abiding influence over resolution of legal problems in the area of contracts is remarkable. Arguably, the continued centrality of Freedom of Contract in modern society is surprising in light of the prevalence of circumstances such as standard form contracting and relational contracting which are not well-modelled by Freedom of Contract. This suggests that Freedom of Contract remains essential to us not as a fact, but as an idea — as a way that we like to think about contracts and issues arising in the domain of what we call Contract Law

Why Does Lord Denning\u27s Lead Balloon Intrigue Us Still? The Prospects of Finding a Unifying Principle for Duress, Undue Influence and Unconscionability

To this day, Lord Denning’s opinion in Lloyds Bank v Bundy remains a staple of first-year Contracts courses in law faculties across the common law world. After surveying doctrines such as duress, undue influence, and unconscionable bargains, Denning posited that they were instances of an underlying principle permitting avoidance of a contract for “inequality of bargaining power”. Although rejected by the House of Lords, Denning’s proposition has intrigued Contract scholars for more than four decades. Subsequent attempts to “fix” Denning’s thesis have fallen short. Yet, authors of Contract textbooks persist in asking whether the doctrines might yet be unified in the future. This paper argues that a common principle indeed does exist, whose conditions emerge from careful analysis of the insights and flaws of the theories posited by Lord Denning and others following him. As Contract scholars have noted, recognising the common principle would greatly simplify and rationalise this area of law. It should permit a more principle-focused and consistent adjudication of cases where a party seeks to avoid a contract on the basis that its consent was vitiated by duress, undue influence, or unconscionability

Justice As Harmony: The Distinct Resonance of Chief Justice Beverley McLachlin\u27s Juridical Genius

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit of harmonious resolution of legal problems. After noting the pervasive association of the concept of harmony with the just order in many cultures across the world and over history, the article explains how harmony can be used, complementarily with legal rules, as an aim in adjudication. As a relationship among elements of a system and the whole that they comprise, it offers a way of leveraging accepted legal principles and their aim of just order in order to address the insufficiencies of the rules that reveal themselves through legal disputes. In search of that relationship, harmony necessarily engages process, committing the judge to working out how to give collective effect to the multiple legitimate considerations invoked by the problem, and thus resolve the legal system-disharmony revealed by a case. Striving for consensus, accommodation, and reconciliation are among such methods often said to be favoured by McLachlin CJC over alternatives that perceive problems through the simplistic lens of either-or-type conflicts. The article surveys how Chief Justice McLachlin’s work characteristically evinces this quality of pursuing justice as harmony. Based on McLachlin CJC’s remarkable success, as well as novel social conditions arising contemporaneously with her career, the article concludes by asking whether this approach may hold wider promise

Framing Effects, Rhetorical Devices, and High-Stakes Litigation: A Cautionary Tale

Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be able to answer whether language which is common in that external discourse is being used as a frame or rhetorical device. The problem of the self-referentiality of social systems or of the culture-specificity of language means that the judge may not fully appreciate the intended usage of terminology found in an external discourse including potentially as frames or tropes. However, the native character of communication also means that courts should at least be able to recognize whether or not familiar terms which are also being used externally are being used in the same sense the legal system recognizes

Controlling Fairness in Standard Form Contracts: What Can Courts Do, and What Should They Do?

Unfair terms in standard form contracts are one of Contract Law\u27s most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter\u27s ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness of their use in modern society, make unfair standard form terms a feature of the economic system which systemically and significantly contributes to the post-industrial era\u27s astounding inequalities of wealth and power. These disparities are expanding now more than ever in the present age of technology, with the increasing migration of social activity online-governed by standard form contracts, made via click-wrap , browse- wrap and the like

Developments in Contract Law: The 2020-2021 Term – Appeals to Fairness

This article analyzes important developments in Contract Law stemming from consideration by the Supreme Court of Canada in 2020-2021. Due to the large number of Contracts cases during this period, the article focuses on prominent appeals occupied with issues of fairness in Canadian Contract Law. Fairness in contracts emerges as an important concern of the SCC at this juncture. This appropriately reflects the constellation of some long-unsolved problems (e.g., control of unfair terms in standard form contracts), confusion around key concepts associated with protection of contractual fairness (e.g., unconscionability and good faith), and judicial disagreement over the merits of general versus context-specific approaches to policing fairness in contracts (e.g., unconscionability versus public policy, and whether to consolidate or differentiate how the concepts of unconscionability and good faith apply to different contexts falling within each’s overall jurisdiction)

The HMCS Unconscionability: Adrift in the Atlantic

This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Courtwatchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability

The Flaws of Magic Bullet Theory: Retraining Unconscionability to Discretely Target Different Contexts of Unfairness in Contracts

Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. To manage the doctrines’ coexistence and clarify this universally confounding area of law, I recommend further a distinctly Canadian approach: Recognizing unconscionability as an “organizing principle”. Alongside that of good faith which governs performance, this one would address enforceability in abuse of power situations, elevating fairness in Canadian contract law. L’iniquité a longtemps été un domaine problématique dans la jurisprudence canadienne. Ceci est un enjeu important étant donné la prééminence du concept de l’iniquité comme protection juridique de l’équité contractuelle. Cet article élabore une réorganisation et une rationalisation nécessaire de l’iniquité au Canada. En vertu du droit actuel, une seule doctrine vise vainement deux objectifs divergents. J’expose ici une proposition de redéveloppement : à la place de cette approche futile, on devrait déployer deux doctrines de common law distinctes, chacune adaptée à son objectif unique : (1) une doctrine de négociation inique à l’anglaise pour éviter les transactions qui exploitent une faiblesse particulière, et (2) une doctrine des clauses iniques à l’américaine pour contrôler les clauses abusive dans les contrats d’adhésion. De nombreux précédents canadiens soutiennent cette solution, assurant sa faisabilité et sa légitimité. Pour gérer la coexistence des doctrines et clarifier ce domaine du droit universellement déroutant, je suggère une approche typiquement canadienne : reconnaître l’iniquité comme un « principe ». Parallèlement à celui de la bonne foi qui régit l’exécution contractuelle, celui-ci traiterait de la force exécutoire dans les situations d’abus de pouvoir, augmentant l’équité dans le droit des contrats au Canada