Private Law Theory

ABSTRACT
Trade practices that are certain, notorious and reasonable will bind a contracting party who is ignorant of the practice. This article analyses these three criteria and reconciles them with contract doctrine. It argues that each of the criteria serves an important function in balancing the interests of contracting parties, and achieving an objectively fair outcome. The article critiques in particular the recognition of a trade practice in a banking case, Tidal Energy v Bank of Scotland, and argues that it failed to promote the consumer protection function of the criteria as evidenced by previous cases.

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Sandra Booysen, Trade Practices, Contract Doctrine and Consumer Protection [2021] Lloyd’s Maritime and Commercial Law Quarterly 316.

First posted 2021-07-07 10:00:16