These things are sent to try us: In-house Counsel and Pre-contractual Agreements – the Australian Experience

Abstract

This paper explores various types of pre-contractual agreements commonly encountered, and the particular features of each. It analyses where Australian law draws the line of enforceability over such arrangements by reference to traditional contractual concepts, and the principles referred to in the paper are illustrated by high level examples drawn from recent Australian decisions on point, with the aim of helping practitioners identify and deal with the issues commonly met. The paper also looks at the emerging overlay of a requirement of good faith into contracts, and considers how this might apply to pre-contractual agreements. It suggests matters practitioners might address to avoid common pitfalls and costly disputes around the issue of legal enforceability, and offers some general thoughts on the use of pre-contractual agreements to help in managing that tension.