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.
Dr Dilan Thampapillai
Dr Dilan Thampapillai is a Senior Lecturer with the ANU College of Law. Dilan has significant expertise on artificial intelligence, copyright and contract law. Prior to becoming an academic, Dilan was a government lawyer with the Attorney-General's Department and the Australian Government Solicitor. He has advised on treaties, copyright law and commercial matters. He convenes and lectures Contract Law and Advanced Contracts. Dilan has written a textbook on Contract Law - Thampapillai, Bozzi and Bruce, Contract Law: Cases and Commentary (2nd ed) LexisNexis, 2016. Dilan has also written a text on Commercial Law with Cambridge University Press. Dilan's qualifications include: BA, LLB (ANU), M.Com (USyd), LLM (Cornell). Dilan has completed his doctorate at the University of Melbourne. His thesis was passed without corrections. The degree was conferred in early April 2020.