Predictability, certainty, and party autonomy in the sale and supply of goods

Abstract

Predictability, certainty, and party autonomy are important goals in the development of legal principles. This article will examine these concepts and discuss a theoretical framework by which legal developments can be assessed. This theoretical framework will be applied in order to critically consider recent developments in two key areas relating to the sale and supply of goods, namely the action for price, and the characterization of contracts. In examining the interrelation between case law and legislation in these aspects of Commercial Law, the impact of the recent UK Supreme Court decision in PST Energy 7 Shipping v OW Bunker Malta (The Res Cogitans) will be explored. This landmark case considered several provisions of the UK Sale of Goods Act 1979. Many common law jurisdictions, such as Hong Kong and Singapore, have legislation that is very similar to the UK Sale of Goods Act, and Res Cogitans is thus of great interest and concern to those in such common law jurisdictions, since the courts in these jurisdictions are likely to view Res Cogitans as highly persuasive in the interpretation of similar local legislation. Various law reform options (including those inspired by the Canadian Uniform Sale of Goods Act) and suggestions for the drafting of contractual clauses will then be critically considered, with a view to promoting predictability, certainty, and party autonomy in the law relating to the sale and supply of goods.