Claims Outside the Contract from a Common Law Perspective

Robert Fenwick Elliott

March 2024

A paper presented to the Society of Construction Law in London on 5th December 2023

The paper suggests a scenario – you act for a contractor who has not been paid for his work. You read the contract and find no contractual entitlement. What should you do? The author’s suggestion is that you should run through a checklist of possible extra-contractual routes to recovery: misrepresentation, implied terms and damages for breach of contract, prevention/time at large, estoppel, impossibility, and penalty and relief from forfeiture. His argument is that in most cases in which a contracting party has a reasonable commercial expectation of payment, at least one of these extra-contractual routes is likely to be available even if the express words of the contract offer no such route. The paper examines each of these extra-contractual routes and reviews relevant cases from the UK and Australia, and argues that extra-contractual remedies do not get the attention they deserve.

Introduction – A scenario – Misrepresentation – Implied terms and damages for breach of contract – Prevention/time at large – Estoppel – Impossibility – Penalty and relief from forfeiture – Taking stock

The author: Robert Fenwick Elliott is a Barrister of the Supreme Court of South Australia, Lawyer of the Supreme Court of New South Wales, Solicitor and Barrister of the Federal Court of Australia and formerly a Solicitor of the Supreme Court of Judicature of England & Wales

Text: 11 pages