Gray on ‘Relational Contract Theory, the Relevance of Actual Performance in Contract Interpretation and its Application to Employment Contracts in the United Kingdom and Australia'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Relational Contract Theory, the Relevance of Actual Performance in Contract Interpretation and its Application to Employment Contracts in the United Kingdom and Australia'.  The article appears in Volume 52 of the Common Law World Review.  Here is the abstract:

"This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties’ contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties’ relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions."