The High Court, Contract and Remedies

Abstract

The High Court, in recent years, has indicated that it is no longer constrained by nineteenth century notions of the classical theory of contract.1 That theory postulates that where a contract is entered into the parties will be bound to perform it strictly in accordance with the agreed terms, that the only persons entitled to enforce the contract are the parties, that until the contract is formed there will be no obligation enforceable at the suit of either party, and that if for any reason the contract is not valid the parties will be free from any liability for non-performance. These statements are obviously generalizations and never at any stage have been completely accurate. However, they reflect a general attitude that a contract creates a discrete legal relationship between the parties, and that there is little room for intervention in that relationship.