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The Construction and Performance of Commercial Contracts

The Construction and Performance of Commercial Contracts

By S A Christensen and W D Duncan


This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts.

The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law.

The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.


Table of Cases
Table of Statutes

Contracts in Contemporary Commercial Dealings
General Principles for Construction of Contracts
Liquidated Damages Clauses
Exclusion and Limitation of Liability Clauses
Entire Agreement Clauses
Passing of Risk in Real Property Transactions
Force Majeure
Contingent Conditions
Time Provisions
Confidentiality Clauses
Notice Provisions
Further Assurance and Cooperation
Dispute Resolution Clauses
Governing Law and Jurisdiction Clauses



A considerable amount of the work of commercial courts these days is occupied by construing contracts made between business people. Part of the reason for this is that many business people give what they contemptuously call “the paper work” very low priority and assume that all parties to a transaction will share the same view of the transaction as themselves. The work of the courts is not made easier by the problem that our High Court and the English commercial courts have adopted significantly different approaches to the construction of commercial contracts.
        This book aims to assist with these problems. However, it does so in a different way to the approach taken by Lewison and Hughes in their seminal text, The Interpretation of Contracts in Australia (Lawbook Co, 2012). Only one chapter of the present book focuses on how the basic approach to the construction of commercial contracts differs from the approach to “ordinary” contracts. However, that treatment is a good summary of the current position, though it lacks the depth that the citation of a wider selection of utterances from the authorities would have given it.
        Apart from the introductory chapter, the other chapters deal with particular aspects of commercial contracts. Thus, Ch 6 deals with entire agreement clauses in 16 pages, Ch 9 deals with contingent conditions in 20 pages and Ch 10, with time provisions in 26 pages. Other chapters are “Notice Provisions”, “Novation”, “Nomination”, “Guarantees”, “Indemnities”, and “Dispute Resolution Clauses”. In each of these chapters, particular problems of construction are addressed, including how the courts have approached standard clauses such as “subject to finance”.
        It is good that the authors have taken a different approach to the subject as their book is not a duplication of existing texts, but rather is a useful complementary work to them.

Peter W Young AO, Australian Law Journal, August 2015

This is an excellent reference book for all lawyers who work in the drafting of contracts or in relation to contractual disputes.
        The practical experience of the authors' is evident in the way the book is written. The content is structured in a very logical way. … The book is useful for any practitioner. It is in plain English. It gives very practical advice.
        This book will live in the shelf next to my desk as a reference in relation to the construction of all contracts that I need to draft or consider. It is very clear, precise and useful. Read full review...

Uwe Boettcher, Ethos, ACT Law Society, December 2014

This excellent new work provides substantial practical guidance for both general issues of construction of contracts but more particularly, to issues that arise in relation to the construction of specific clauses frequently encountered in commercial contracts. The Construction and Performance of Commercial Contracts is recommended to all those involved in drafting, implementing and enforcing commercial contracts in Australia. Read full review...

Peter Lithgow, Australian Business Law Review, October 2014


Published 28 July 2014
Publisher The Federation Press
ISBN 9781862879720
Australian RRP $165.00
International Price $150.00
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Law - Contract

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