Warren Swain, ‘The Laws of “An Old and Settled Society”? The Law of Contract in New South Wales in the Mid-Nineteenth Century’

ABSTRACT
The history of contract law in New South Wales in the decades after the closure of the Court of Civil Jurisdiction in 1814 hasn’t received much attention from legal historians. This is an important omission. At the heart of this story is a simple but critical inquiry about the way in which the law of contract in the colony mirrored or diverged from the law of contract that applied back in London. This was rarely a matter that judges addressed explicitly. Piecing together the relationship is an exercise in reconstruction. This can only be done by examining the body of case law. The creation of the Australasian Colonial Legal History Library combined with readily searchable newspaper reports has made this task easier. The evidence in the mid-nineteenth century is still sometimes sketchy. Context is relevant. The colony moved from a quasi-military penal colony to a significant hub of commercial activity. The period also saw a shift in the legal system as the old informal systems evolved into a much more legalistic one. Some issues like the desertion of sailors demanded local solutions. In fact there are a range of examples in which well-established English contract doctrine did not necessarily fit very well with the conditions of the colony.

Swain, Warren, The Laws of ‘An Old and Settled Society’? The Law of Contract in New South Wales in the Mid-Nineteenth Century (November 15, 2021).

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