Less is law

Professor Ted Wright has a vision of taking a complex, costly system of contract law and turning it into a user-friendly, precise and accessible code.

The Dean of Law has long been an advocate of the codification and international harmonisation of contract law.

In 1992, he and his colleague, Conjoint Professor Fred Ellinghaus, wrote a draft code for the Law Reform Commission of Victoria.

"We stated the whole of contract law in 27 rules, demonstrating how much simpler – but still functional – the law would be if it was codified," Wright said.

As contract law stands in Australia, the rules are only to be found in published judgements of the courts. It is common practice for our judges to use, in addition to Australian cases, the decisions of the courts of England, New Zealand, Canada and the United States as a reference point. These judgements are contained in tens and sometimes hundreds of pages, with the rules to be found in them having no single authoritative form.

Working with Ellinghaus, Wright’s current research is based on taking advantage of the overriding standards of justice recognised in all modern legal systems and using them as a tool of simplification. From that, they argue the whole of contract doctrine can be encompassed in a comparatively small number of general rules which are specific enough to practically regulate contracting and contract disputes.

Funded by an Australian Research Council (ARC) Discovery Project grant, the thesis will be tested through empirical work evaluating the utility of different models of contract law. The research involves final year law students deciding hypothetical disputes (based on real cases), some using the draft code and others using existing case law, as well as a substantially more detailed and complex code – the American Restatement of contract law.

"If verified, the usefulness of broad principles provides the key to two hitherto elusive goals – namely the codification of contract law in case law systems and transnational harmonisation of this foundational part of trade law," Wright said.

"The work builds on the 1992 draft and our 2005 publication of Models of Contract Law: An empirical evaluation of their utility, which was an ARC Linkage project with the Law and Justice Foundation of NSW."

Most recently, Wright and Ellinghaus have been engaged by the Asian Development Bank to strengthen contract law in the developing nations of the Pacific region. One of the options they have been asked to explore is the introduction of a Code of Contract law for the region.