Contract Law in Singapore

Name: Contract Law in Singapore
Brand: Wolters Kluwer
Price: 190.99 EUR
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Andrew B. L. Phang Goh Yihan(Autor*in)

Wolters Kluwer (Verlag)

Erschienen am 21. Oktober 2021

888 Seiten

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Inhalt

Intro
Title Page
Copyright Page
The Authors
Table of Contents
List of Abbreviations
Preface
General Introduction
§1. General Background of the Country
I. Geography
II. Population and Cultural Composition
§2. The Sources of Singapore Law: A Brief Overview
I. Introduction
II. The Position Prior to the Enactment of the AELA 1993
A. Classification of Methods of Receiving English Law
B. General Reception of English Law
C. Specific Reception of English Commercial Law under Section 5 of the CLA
1. Introduction
2. General Problems Surrounding Section 5 of the CLA
a. Whether Section 5 Entailed Reception of Common Law as Well
b. Interpretation of Section 5
c. Severability, Suitability, and the Effect of Section 5(3)(a)
3. Specific Problems Surrounding Section 5 of the CLA in the Application to Commercial Statutes
a. The Sale of Goods Acts of 1893 and 1979
b. The Misrepresentation Act 1967
c. The Unfair Contract Terms Act 1977
d. Statutes Concerning Minors' Contracts
i. The Infants Relief Act 1874
ii. The Minors' Contracts Act 1987
iii. The Family Law Reform Act 1969
4. Reform
III. The Position after the Enactment of the AELA 1993
A. General
B. Basic Structure of the AELA
1. General
2. Common Law and Equity
3. Section 4 Read with First Schedule: English Statute Law
4. Section 7 Read with Second Schedule: Specific Amendments to Specific Local Acts
C. Some Remaining Problems
IV. Development of an Autochthonous Singapore Legal System
A. Desirability of an Autochthonous Singapore Legal System and Its Limits
B. Developments Towards an Autochthonous Singapore Legal System
V. Some Other Aspects of the Singapore Legal System
A. The Singapore Court System
B. Stare Decisis and Judicial Precedent
C. Statutory Interpretation: Some Aspects
D. A Brief Note on the Vienna Convention in the Singapore Context
E. A Brief Note on Alternative Dispute Resolution
VI. Introduction to the Law of Contracts in Singapore
Part I. Formation
Chapter 1. Offer and Acceptance
§1. Introduction
I. Objective Ascertainment
II. General Issues
§2. Offer
I. Definition and Nature of an Offer
II. Elements of an Offer
A. Intention to Be Bound
1. General Principles
a. An Objective Intention to Be Bound
b. Words and Conduct as Evidence of Intention to Be Bound
c. Inactivity as Evidence of Intention to Be Bound
2. Invitation to Treat Does Not Constitute Objective Intention to Be Bound
a. Advertisements
b. Priced Goods on Display
c. Tenders
d. Auction Sales
e. Quotations
B. Communication to an Offeree
1. Offer Communicated to the Whole World
2. Communication of Acceptance in Unilateral Contracts
3. Cross-Offers
III. Termination of an Offer
A. Revocation
B. Rejection
C. Lapse of Time
D. Failure of a Condition Subject to Which the Offer Was Made
E. Death
§3. Acceptance
I. Introduction
II. Elements of an Acceptance
A. Intention to Be Bound
1. General Principles
a. An Objective Intention to Be Bound
b. Words and Conduct as Evidence of Intention to Be Bound
2. The Acceptance Must Be Unconditional and Unqualified
3. Battle of the Forms
B. The Acceptance Must Be Communicated to the Offeror
1. General Rule
2. Exceptions to the General Rule
a. Offer Waives Need for Communication of Acceptance
b. Fault on Part of Offeror
c. Communication of Acceptance to Offeror's Agent
d. Postal Acceptance Rule
3. Acceptance by Silence?
4. No Acceptance by an Offeree Ignorant of the Offer
§4. Certainty of Terms and Completeness of Agreement
I. General Principles
II. Certainty of Terms
A. Requirement of Certainty
B. The Degree of Certainty Required
C. Remedying Uncertainty
1. Previous Course of Dealing or Trade Practice
2. Contract Providing for Method of Ascertainment
3. Statutory Provision
4. Implication of Terms
5. Partial Recovery
D. Agreements to Negotiate in Good Faith
1. Walford v. Miles
2. Walford v. Miles Distinguished in Singapore
III. Incomplete Agreements
A. Requirement of Completeness
B. Degree of Completeness Required
C. Remedying Incompleteness
1. Reference to Earlier Agreement
2. Interim Agreement with Details to Be Added Later
3. Previous Conduct
D. Agreement 'Subject to Contract'
1. General Principles
2. Facts That Determine if Prima Facie Meaning of 'Subject to Contract' Clauses Applies
§5. Artificiality of Offer and Acceptance
§6. A Brief Note on the Singapore Electronic Transactions Act
I. Electronics Transaction Act 2010 and Its Predecessor Statute
II. Application
A. Application and Consent
B. Time and Place of Despatch and Receipt
C. Invitation to Make Offers
D. Automated Message Systems
E. Signature
Chapter 2. Consideration
§1. Introduction
I. Definition of Consideration
II. Executory and Executed Consideration
III. Basis of Consideration
A. Historical Bases of Consideration
B. The Modern Basis of Consideration: 'Benefit-Detriment' Analysis
IV. Consideration and Other Doctrines
§2. General Principles
I. Past Consideration Is No Consideration
A. The General Rule
B. The 'Pao On' 'Exception'
II. Consideration Must Move from the Promisee and Not from a Third Party
A. The General Rule
B. The 'Joint Promisee Doctrine' Exception
III. Consideration Must Be Sufficient Although It Need Not Be Adequate
A. When Is Consideration Sufficient?
1. The Concept of 'Sufficiency' and Its Rationale
2. Sufficiency Is Easily Found
3. Moral Obligations
4. Compromise
5. Forbearance
6. A Summary
IV. Special Situations Relating to Sufficiency of Consideration: Pre-existing Duties
A. Where a Public Duty Is Imposed upon the Promisee by Law
B. Where the Promisee Owes an Existing Contractual Duty to a Third Party
C. Where the Promisee Owes an Existing Contractual Duty to the Same Party (the Promisor)
1. Promise to Pay More for the Same
a. English Position
b. Singapore Position
2. Promise to Receive Less for the Same
a. English Position
b. Singapore Position
c. Exceptions
§3. Promissory Estoppel
I. Origins and Definition of Promissory Estoppel
II. Elements of Promissory Estoppel
A. General Formulations
B. A Clear Promise
C. Reliance
D. Detriment (or Inequitability?)
1. English Position
2. Singapore Position
3. A Broader Conception of Promissory Estoppel Without the Need for Detriment?
E. 'Clean Hands'
III. Effect of Promissory Estoppel
A. Duration of Promissory Estoppel
B. Use of Promissory Estoppel: 'Shield' and Not a 'Sword'?
§4. Time for Reform?
Chapter 3. Intention to Create Legal Relations
§1. Introduction
I. General Principles
II. Relationship with the Doctrine of Consideration and the Requirements of Certainty and Completeness
§2. Social and Domestic Arrangements
I. English Position
II. Singapore Position
§3. Business and Commercial Arrangements
I. General Principles
A. English Position
B. Singapore Position
1. General Principles
2. Definition of a 'Commercial Context' in Singapore
II. Letters of Comfort
A. English Position
B. Singapore Position
III. Letters of Intent
Part II. Conditions of Substantive Validity
Chapter 1. Incapacity
§1. Minors
I. The Age of Majority
II. Statutory Reception of Substantive English Law
III. Modifications by Statute
A. Infants Relief Act 1874
B. Minors' Contracts Act 1987
C. Civil Law Act
IV. Common Law Principles
A. The General Rule
B. Exceptions to the General Rule
1. Necessaries
2. Contracts of Service
3. Lasting or Permanent Interest in Property
4. Tortious Acts
§2. Incapacity Due to Specific Reasons
I. Mental Incapacity
II. Drunkenness
III. Medication
§3. Companies
Chapter 2. Mistake
§1. Introduction
§2. Common Mistake
I. Introduction
II. Common Mistake at Common Law
A. The Development of Common Mistake at Common Law
1. Bell v. Lever Brothers, Ltd
2. Associated Japanese Bank (International) Ltd v. Credit Du Nord SA
3. Great Peace Shipping Ltd v. Tsavliris Salvage (International) Ltd
B. The Requirements of Common Mistake at Common Law
1. General Principles
a. Paramount Respect for Sanctity of Contracts
b. Doctrine of Mistake Caters Only to Unexpected and Wholly Exceptional Circumstances
2. Preconditions
a. No Allocation of Risk to Either Party of Consequences Occasioned by the Mistake
b. Mistake Is Not Attributable to Fault of Either Party
3. Requirements for Applying Common Mistake at Common Law
a. Mistake Must Be Shared by Both Parties and Relate to Facts or Law Before Contract Was Concluded
C. Slight Difficulty with Res Extincta Cases
III. Common Mistake in Equity
A. The Earlier Development of Common Mistake in Equity
B. The Requirements of Common Mistake in Equity
1. Precondition
2. Test for Common Mistake in Equity
3. Remedy for Common Mistake in Equity
C. The Present Status of Common Mistake in Equity in England
D. The Singapore Position Notwithstanding Developments in England
IV. The Relationship Between Common Law and Equity
V. Rectification
A. Definition and Terminology
B. Rectification and Pleading Requirements
C. Requirements for Rectification for Common Mistake
D. Requirements for Rectification for Unilateral Mistake
§3. Mutual Mistake
I. Introduction
II. Requirements of Mutual Mistake
§4. Unilateral Mistake
I. Introduction
II. Unilateral Mistake as to Terms
A. Unilateral Mistake as to Terms at Common Law
1. Rationale of Unilateral Mistake as to Terms at Common Law
2. The Requirements of Unilateral Mistake as to Terms at Common Law
a. The Unilateral Mistake Must Relate to the Terms of the Contract
b. The Unilateral Mistake Must Be Fundamental
c. Non-mistaken Party Must Have Actual Knowledge of Unilateral Mistake
B. Unilateral Mistake as to Terms in Equity
1. Rationale of Unilateral Mistake as to Terms in Equity
2. The Requirements of Unilateral Mistake as to Terms in Equity
a. Unilateral Mistake Must Relate to Terms of Contract
b. Unilateral Mistake Must Be 'Fundamental'
c. Non-mistaken Party Must Have Constructive Knowledge Of Unilateral Mistake
d. Non-mistaken Party Must Have Engaged in Some Unconscionable Conduct in Relation to the Relevant Mistake
III. Unilateral Mistake as to Identity
A. Introduction
B. Inter Praesentes Cases
C. Non-inter Praesentes Cases
D. The Singapore Position
§5. Non Est Factum
I. Introduction
II. Requirements of Non Est Factum
A. Radical Difference Between Document Signed and Document Thought to Be Signed
B. Non-negligence by Party Seeking Operation of Doctrine
Chapter 3. Misrepresentation
§1. Introduction
§2. General Principles and Remedies
I. General Principles
A. Common Elements of a Misrepresentation
1. A Statement of Fact
a. Characteristics of a Statement of Fact
b. A Statement of Fact Distinguished from Other Types of Statements
2. Statement of Fact Is False
a. Assessing Falsity
b. Silence as Falsity?
3. Material Inducement
a. Inducement Need Not Be the Sole Cause
b. Proof of Inducement
c. Reasonable Opportunity to Verify Not Crucial
d. Inducement by a Third Party's Representation
B. Types of Misrepresentation
1. Fraudulent Misrepresentation
a. Proof of Fraud
b. States of Mind Amounting to Fraud
c. Proof of Inducement or Reliance
2. Negligent Misrepresentation
3. Statutory Action under Section 2(1) of the Misrepresentation Act
a. Relationship with Negligent Misstatement at Common Law
b. Application of Test of Reasonable Belief
4. Wholly Innocent Misrepresentation
II. Remedies
A. Rescission
1. Right to Rescission and Election
2. Bars to Rescission
a. Affirmation
b. Lapse of Time
c. Restitutio in Integrum Impossible
B. Damages
1. Fraudulent Misrepresentation
2. Negligent Misstatement
3. Statutory Action for Negligent Misstatement
4. Wholly Innocent Misrepresentation
a. Rescission with Indemnity
b. Damages in Lieu of Rescission
5. Miscellaneous Matters
§3. Restriction or Exclusion of Liability for Misrepresentation
I. Section 3 of the Misrepresentation Act
II. Clauses Caught by Section 3 of the Misrepresentation Act
A. Substance Rather Than Form of Clause
B. Entire Agreement Clauses
C. Non-reliance Clauses
§4. Conclusion
Chapter 4. Economic Duress
§1. Introduction
I. Development and Acceptance
II. Relationship with the Doctrine of Consideration and Future of Economic Duress
§2. General Principles
I. Two Substantive Requirements
II. Other Preliminary Matters
A. Economic Duress Must Be Specifically Pleaded
B. The Importance of Facts
§3. The Requirement of Illegitimate Pressure
I. Pressure Comprises a Threat and a Demand
A. Demand Necessary in Addition to Threat for Duress to Apply
B. Demand Additional to Threat Necessary but Insufficient for Duress to Apply
II. Different Combinations of Threat and Demand
A. Unlawful Threat or Unreasonable Demand
1. The General Position
2. An Exception: A Threat to Breach a Contract
a. An Accepted Position
b. Was There Even a 'Threat' to Breach the Contract?
c. Was the Threatened Breach of Contract Reasonable?
B. Lawful Threat and Reasonable Demand
1. The General Position
2. Distinguishing Commercial Pressure from Illegitimate Pressure
a. Threat Involves Abuse of Legal Process
b. Demand Made in Bad Faith
c. The Demand Made Is Unreasonable
d. The Threat Is Considered Unconscionable in the Circumstances
§4. The Requirement of Coercion of the Will
I. Coercion or Destruction of the Will?
II. What Amounts to Coercion of the Will?
A. Reasonable Alternative
B. Protest
C. Availability of Independent Legal Advice
III. Causation
A. General Principles
B. Burden of Proof for Causation
§5. The Legal Effect of Duress
Chapter 5. Undue Influence
§1. Introduction
§2. General Principles
I. Two Substantive Aspects
II. Undue Influence Operates Even If Person Exerting Influence Did Not Receive Gift
III. Proving Undue Influence
A. Direct Proof
B. Indirect Proof
C. Proof by Presumption
IV. Categories of Undue Influence Based on the Manner of Proof
§3. Class 1 ('Actual') Undue Influence
I. General Principles
II. Proving Actual Undue Influence
A. Consent Not Obtained by Exercise of Free Will
B. Wrongful Exercise of Influence
III. Causation
IV. Overlap with Duress
§4. Class 2 ('Presumed') Undue Influence
I. General Principles
A. Difference in the Manner of Proof
B. Two Different Presumptions
C. Two Sub-categories
II. First Requirement: A Relationship of Influence
A. Class 2A Undue Influence: Categories of Relationship Where Influence Is Irrebuttably Presumed
B. Class 2B Undue Influence: Proving Existence of a Relationship of Influence
III. Second Requirement: A Transaction That 'Calls for Explanation'
A. No Requirement of 'Manifest Disadvantage'
B. When Does a Transaction 'Call for Explanation'?
1. General Principles
2. Family Arrangements
3. Wills
IV. Rebutting the Presumption of Exercise of Undue Influence
A. Independent Legal Advice
B. Other Ways of Rebutting Presumption
§5. Undue Influence, Creditors, and the Doctrine of 'Infection'
I. Preliminary Matters
II. Two Methods of 'Infection'
A. Guilty Party Is an Agent of Creditor
B. Constructive Notice by the Creditor
1. When a Creditor Is Put on Inquiry
a. English Position
b. Singapore Position
2. When Creditor Has Taken Reasonable Steps to Avoid Constructive Notice
3. Duty of Solicitor
§6. Effects of Undue Influence
I. General Principles
II. Limits to Recovery
Chapter 6. Unconscionability
§1. Introduction
§2. Different Scopes of the Doctrine of Unconscionability
I. Narrow Doctrine: England
II. Broader Doctrine: Australia
III. Modified Narrow Doctrine: Singapore
§3. The Requirements of Unconscionability
I. The Requirements
II. Plaintiff Suffering from an Infirmity
III. Burden on Defendant to Show Transaction Was Fair, Just and Reasonable
§4. A Broader Application of the Doctrine of Unconscionability?
Chapter 7. Illegality
§1. Introduction
§2. Statutory Illegality
I. Preliminary Matters
A. Contravention of Statutory Provision Required
1. A Necessary but Insufficient Precondition Threshold Requirement: Contravention of Statutory Provision
2. Contravention of Secondary and Non-statutory Provisions
B. Summary of the Singapore Position
C. Distinction Between 'Illegal' and 'Void' Contracts
D. Distinction Between 'Contracts Illegal as Formed' and 'Contracts Illegal as Performed'
II. Express Prohibition
III. Implied Prohibition
A. Ascertaining Legislative Intent When the Statutory Language Is Unclear
B. The Test to Ascertain Legislative Intent
C. A New Approach in Implied Prohibition?
D. The Singapore Position
IV. Situations Where There Is Neither Express Nor Implied Prohibition
A. The Relevance of the Parties' Intentions
B. Determining the 'Guilty' Party
§3. Illegality at Common Law
I. Preliminary Matters
A. Background
B. The Fluid Nature of Public Policy
C. Indeterminacy of the Various Heads of Public Policy
II. Established Situations of Illegality at Common Law
A. Contracts Prejudicial to the Administration of Justice
1. Contracts to Stifle a Prosecution
2. Contracts Savouring of Maintenance or Champerty
B. Contracts to Deceive Public Authorities
C. Contracts to Oust the Jurisdiction of the Courts
1. Arbitration Agreements
2. Maintenance Agreements
D. Contracts to Commit a Crime, Tort, or Fraud
E. Marriage Brokage Contracts
F. Contracts Promoting Sexual Immorality
G. Contracts Liable to Corrupt Public Life
H. A Residual Discretion
III. Summary
§4. The Effects of Illegality
I. Introduction
II. Recovery under the Illegal Contract Itself
A. No Recourse Generally to Either Party
B. Relevance of the Parties' States of Mind
III. Recovery of Benefits Conferred under an Illegal Contract (Restitution)
A. The 'Public Conscience' Test
B. Three Possible Avenues of Recovery
1. Recovery Where Parties Are Not in Pari Delicto
a. Class-Protection Statutes
b. Fraud, Duress or Oppression
c. Mistake
2. Independent Cause of Action
a. Tort
b. Unjust Enrichment
c. Collateral Contract
3. Repentance or Timely Repudiation
C. Equitable Exceptions?
D. No Recovery in Case of Stultification
IV. Summary
§5. A Brief Case-Study: The Housing Developers Acts and Rules and the Sale of Commercial Properties Act and Rules
§6. Contracts in Restraint of Trade
I. General History and Principles
A. The Validating Effect of Reasonableness
B. Distinction Between the Singapore and English Approaches in Application of the Criterion of 'Reasonableness'
C. Requirements of the Test Validating a Restraint of Trade Clause
1. Requirement of Legitimate Proprietary Interest
2. Factors Relevant in Ascertaining 'Reasonableness'
3. Burden of Proof
II. Categories of Restraint of Trade Covenants
A. Sale of a Business
B. Contracts of Employment
1. Trade Secrets
2. Trade Connection
C. Non-solicitation Clauses
D. Exclusive Dealing Agreements: Solus Agreements
E. Other Categories
1. Extreme Inequality Between the Contracting Parties
2. 'Hybrid' Situations
§7. Severance
II. Illegality of Part of the Consideration
III. Severance of Promises (The 'Blue Pencil Test')
A. The Present Position
B. Possible Reform from Canada?
C. New Development in English Law
§8. The Proof of Illegality
§9. Conflict of Laws: Some General Principles
§10. Reform
I. Introduction
II. Recent Reforms
III. Suggestions for the Future
Part III. The Contents of a Contract
Chapter 1. Terms of the Contract
§1. Express Terms
I. The Ascertainment of Terms
A. The Parol Evidence Rule
1. Parol Evidence Rule at Common Law
2. Parol Evidence Rule in the Evidence Act
a. General Principles
b. 'Thin' Version of the Parol Evidence Rule Applies in Singapore
c. Other Exceptions in the Evidence Act and Its Interaction with Common Law Exceptions
3. Reform of the Parol Evidence Rule?
B. Is the Statement an Express Term of the Contract or Is It a Mere Representation External to the Contract?
1. General Principles
2. Three Broad Guidelines
C. Incorporation
II. The Interpretation of Terms
A. Overview
B. The Admissible Evidence
1. Overview
2. Whether the Text Is Plainly Clear, Patently Ambiguous or Latently Ambiguous
a. Four Requirements of Civil Procedure
b. Zurich Insurance Requirements
c. Attributes of Documents
d. Prior Negotiations and Subsequent Conduct
e. Summary
3. Whether Extrinsic Evidence May Be Admitted to Depart from the Plain Meaning
C. The Contextual Approach to Contractual Interpretation Applies in Singapore
1. Application of the Objective and Contextual Approach
2. The Relevance of the Text
3. The Relevance of the Context
4. Commercially Sensible Interpretation
5. Canons of Interpretation
§2. Implied Terms
I. General Principles
II. Implication at Common Law
A. Terms Implied in Fact
1. The Two Traditional Tests
2. The Relationship Between the Two Tests
a. Previous Understanding of the Relationship Between the Two Tests
b. Restatement of Understanding of the Relationship Between the Two Tests
3. A Modern Test of Interpretation?
4. The Present Position in Singapore
B. Terms Implied in Law
1. Characteristics of Terms Implied in Law
2. Difficulties with the Prevailing Tests
3. Examples of Terms Implied in Law
C. Terms Implied at Common Law and Entire Agreement Clauses
III. Implication by Statute
IV. Implication by Custom
Chapter 2. Exception Clauses
§1. Introduction
I. The Definition and Scope of Exception Clauses
A. Definition of Exception Clauses
B. Exception Clauses Concerned with Liability or Damages?
II. Operation of Exception Clauses
A. First Set of Questions: Common Law Principles
B. Second Set of Questions: The Unfair Contract Terms Act
III. Statutory Provisions Which Exclude or Limit Liability
§2. Common Law Principles
I. Incorporation
A. Signature
B. Reasonable Notice
C. Course of Dealing
D. By Reference
II. General Principles of Construction
A. The Contra Proferentum Rule
1. General Principles
a. First Stage: Determining Existence of Ambiguity
b. Second Stage: Identifying the Proferens
2. Contra Proferentum Rule in the Context of Negligence
B. The Device of the Collateral Contract
C. The Distinction Between Total Exclusion and Limitation Clauses
D. Fundamental Breach
1. The English Position
2. The Singapore Position
a. Previous Difficulties
b. Present Position
3. Possible Problems of the 'Rule of Construction Doctrine'
4. Present Status of the Doctrine of 'Fundamental Breach'
§3. The Unfair Contract Terms Act
I. Introduction
II. Applicability of the UCTA
A. Applicability of the UCTA in Singapore
B. Specific Applicability of the UCTA
1. Categories of Contracts Excluded
2. UCTA Applies Only to Exception Clauses
C. 'Business Liability'
III. Exclusion of Liability for Negligence
A. Death or Personal Injury
B. Damage Other Than Death or Personal Injury
IV. Exclusion of Contractual Liability
A. Threshold Requirement
1. Consumer Contracts
2. Standard Form Contracts
B. Three Categories under Section 3 All Subject to 'Reasonableness'
V. Exclusion of Liability in Sale and Hire Purchase Contracts and Other Contracts under Which Goods Pass
VI. Exclusion of Liability for Misrepresentation
VII. The Test of Reasonableness
A. Burden of Proof
B. Determination of 'Reasonableness' for Sections 2(2), 3, 6, and 7
C. More Specific Test of Reasonableness for Sections 6 and 7
D. Case Law On the Application of the 'Reasonableness' Test
1. Judicial Statement of Relevant Factors
2. Relative Bargaining Power
3. Negotiations or Protest
4. Availability of Reasonable Alternative
5. Public Policy Considerations
VIII. Other Provisions
§4. Exception Clauses and Third Parties
§5. The Consumer Protection (Fair Trading) Act
Part IV. Privity of Contract
§1. General Principles
I. The Privity Rule at Common Law
A. The Basic Rule and Rationale of Privity
B. The Relationship Between Privity and Consideration
II. The Doctrine of Privity in Singapore
§2. The Common Law Position Considered Through Four Situations
I. Promise by the Promisor to the Promisee in Favour of the Third Party
A. Whether the Third Party Can Sue the Promisor Directly
1. Collateral and Multilateral Contracts
2. Agency
3. Assignment of Choses of Action
4. Land Law
5. Statute
6. The Trust
B. Whether the Promisee Can Sue the Promisor On Behalf of the Third Party
1. Specific Performance
2. Whether the Promisee Can Claim Substantial Damages
a. Promisee Cannot Generally Recover Substantial Damages for the Benefit of the Third Party
b. Exceptions Allowing the Promisee to Recover Substantial Damages: The 'Broad' and 'Narrow' Grounds
II. Promise by the Promisor to the Promisee to Exempt the Third Party from Liability
III. Promise by the Promisor to the Promisee Not to Sue the Third Party
IV. Promise by the Promisor to the Promisee That Imposes Burden on the Third Party
§3. Statutory Addendum to the Common Law Doctrine of Privity
I. Calls for Reforms
II. Contracts (Rights of Third Parties) Act
A. Genesis of the Contracts (Rights of Third Parties) Act
B. Section 2 of the Contracts (Rights of Third Parties) Act
Part V. The End of the Contract
Chapter 1. Discharge by Performance, Breach, and Agreement
§1. Introduction
§2. Discharge by Breach
I. General Principles
A. Justification for Discharge
B. Right to Damages
II. Breach of a Promissory Term
A. When Does a Breach Occur?
1. Entire and Severable (or Divisible) Obligations
2. Doctrine of Substantial Performance
a. Linkages with Other Doctrines
b. Application of the Doctrine
3. Claim in Quantum Meruit
B. When Does a Breach Give Rise to the Right of Termination?
1. Restatement of the Law in RDC Concrete Ltd v. Sato Kogyo (S) Pte Ltd
2. Situation 1: Express Termination Clause
a. General Principles
b. Difference in the Remedies Arising from Situation 1 and Other Situations in RDC Concrete Restatement
3. Situation 2: Repudiation
a. Definition and Application of the Doctrine of Repudiation
b. Where a Party Allegedly Repudiating the Contract Erroneously Concludes It Was Justified to Do So
c. Where Both Parties Are in Breach
d. Where a Party Deliberately Chooses to Perform the Contract in a Substantially Inconsistent Manner
4. Situation 3(a): 'Condition-Warranty Approach'
a. Historical Development
b. Problems with the 'Condition-Warranty Approach'
c. 'Condition-Warranty Approach' in Singapore Following the RDC Concrete Restatement
i. Ascertaining a 'Condition' or 'Warranty'
ii. Effect of a 'Warranty' under the RDC Concrete Restatement
5. Situation 3(b): Hongkong Fir Approach
a. Historical Development
b. Relationship with the 'Condition-Warranty Approach'
i. Conceptual Differences
ii. Conceptual Basis of the 'Hongkong Fir Approach' and Possible Problems
c. 'Hongkong Fir Approach' in Singapore Following the RDC Concrete Restatement
ii. Application of the 'Hongkong Fir approach' under the RDC Concrete Restatement
iii. Summary
C. Election to Terminate the Contract
1. General Principles
2. Specific Principles Relating to Contracts of Employment
III. Anticipatory Breach
A. Anticipatory Breach and the RDC Concrete Framework
B. Anticipatory Breach Applies to Executed Contracts
C. Acceptance of an Anticipatory Breach and Outstanding Obligations
D. Can an Anticipatory Breach Be Rejected?
1. General Approach
2. Two Exceptions to the General Approach
§3. Discharge by Agreement
I. Waiver
II. Variation
III. Novation
Chapter 2. Frustration
§1. Introduction
§2. General Principles
I. Juridical Bases
II. The Relationship Between Frustration and Breach
III. What Constitutes Frustration
A. Frustration Will Not Be Easily Found by the Courts
B. Supervening Illegality
C. Supervening Impossibility
1. Destruction of the Subject Matter of Contract
2. Unavailability of a Particular Source
a. Source Is Expressly Referred to in the Contract
b. Where Only One Party Intended an Unspecified Source
c. Where Both Parties Intended an Unspecified Source
3. Impossible Method of Performance
4. Death or Incapacity of a Contracting Party
5. Temporary Impossibility: Delay
D. Supervening Impracticability
E. Frustration of Purpose
IV. Limitations on the Operation of the Doctrine
A. Foreseeability
B. No Self-Induced Frustration
C. Frustration of Leases
D. Frustration of Contracts for the Sale of Land
§3. The Effects of Frustration
I. Under the Common Law
II. Under the Frustrated Contracts Act
A. The Right to Recover Money Paid
B. The Right to Recover Compensation for Partial Performance Which Confers a Valuable Benefit on the Other Party
C. No 'Double-Counting'
D. Other Provisions
§4. Force Majeure Clauses
I. Distinction Between Force Majeure Clauses and the Doctrine of Frustration
II. Operation of Force Majeure Clauses
A. General Principles
1. A Matter of Construction
2. Reasonable Steps Taken to Avoid the Operation of Force Majeure Clause
a. General Duty to Take All Reasonable Steps?
b. What Are Reasonable Steps?
3. Bringing Oneself Within the Ambit of the Force Majeure Clause
B. Use of Force Majeure Clauses to Exclude Frustration
C. Use of Force Majeure Clauses to Provide Relief for Non-frustrating Events
III. The COVID-19 (Temporary Measures) Act 2020
Part VI. Remedies
§1. Introduction
§2. Damages
I. Threshold Principles
A. The Compensatory Principle
1. Generally No Punitive Damages
2. Limited Relevance of Precedents
B. Proof of Damages
C. Causation
1. Distinction Between Causation in Fact and Causation in Law
2. The 'but for' Test
3. Causation in Inter-Connected Contracts
4. Non-trivial Damage
D. Time When Damages Are Assessed
1. English Position
a. Damages Assessed Exceptionally Other Than at Date of Breach
b. Further Refinement of the Principle in Johnson v. Agnew
c. Present Position in English Law
2. Singapore Position
a. General Application of the Golden Victory
b. Specific Application in the Sale of Property Cases
E. Policy and Damages in Contract
II. Types of Losses
A. Restitutionary Loss
B. Expectation and Reliance Losses
1. Definition of Expectation Loss
2. Definition of Reliance Loss
3. Plaintiff's Choice Between Expectation and Reliance Losses
a. General Approach
b. Exception: No Choice When the Plaintiff Made a Bad Bargain
c. Exception: No Choice Where It Is Impossible to Ascertain the Expectation Loss
C. Wrotham Park Damages
III. The Measure of Damages
A. Two Ways of Quantifying Damages
B. Selection of the Mode of Quantifying Damages
1. Difference in Value Criterion Is Usually Applied
2. When the Cost of Cure Criterion Is Applied
3. Breach of an Obligation with a Range of Choices in the Subject Matter
IV. Loss of a Chance
V. Limitations on Recovery
A. Remoteness of Damage
1. The Singapore Framework in Out of the Box
2. First Question in Out of the Box Framework: The Specific Damages Being Claimed
3. Second and Third Questions in Out of the Box Framework: The Relevant Facts Attributable to the Defendant
a. Second Question in Out of the Box Concerning Imputed Knowledge
b. Third Question in Out of the Box Concerning Actual Knowledge
4. Fourth and Fifth Questions in Out of the Box framework: Reasonable Contemplation of Eventual Loss in Light of Circumstances and Knowledge
a. Degree of Probability
b. Lord Denning's Approach in H Parsons (Livestock) Ltd v. Uttley Ingham & Co Ltd
5. The Continued Relevance of Hadley v. Baxendale
a. Foreign Judicial Critique
b. Continued Adoption of Hadley v. Baxendale in Singapore
i. Rejection of the Foreign Judicial Critique
ii. Retention of Assumption of Responsibility to Explain the Test in Hadley v. Baxendale
B. Mitigation
1. General Principles
a. General Touchstone of 'Reasonableness'
2. 'Duty' to Mitigate?
3. Consequences of Mitigation
a. No Recovery If All Losses Avoided Due to Mitigation
b. Expenses Incurred Through Mitigation
4. Mitigation in Action for a Fixed Sum
C. Damages for Mental Distress
1. General Approach
2. Cutting Back on the General Approach
3. Future Approach
VI. Liquidated Damages and Penalty
A. General Principles
B. Singapore Developments
VII. No Damages in Equity
§3. Equitable Remedies
I. General
II. Specific Performance
A. When Specific Performance Is Granted
B. When Specific Performance Is Not Granted
1. When Damages Are Adequate
2. Severe Hardship
3. Constant Supervision
C. Other Principles
III. Injunction
A. Mandatory Injunction
B. Prohibitory Injunction
Part VII. Special Topics
§1. Introduction
§2. Agency
§3. Bailment
§4. Gaming and Wagering
§5. Sale of Goods
§6. Building Contracts
§7. Leases
§8. Compromise
§9. Suretyship
§10. Pledge
§11. Contracts with the Government and Other Public Administrations
§12. Quasi-Contracts and Restitution
Selected Bibliography
Index

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