Crossing the border from custom to contract: legal pluralism and Pacific Islands’ contract laws

Abstract

ABSTRACT One of the many uses of comparative law is to examine the legal system of a foreign country in order to identify rules, procedures or institutions that work well, with a view to incorporating them into the domestic system. However, failure to appreciate the different context in which the law is to operate gives rise to unforeseen problems. This article employs examples from the law of contract in force in Pacific Island countries to illustrate the dangers of transplanting laws without giving due regard to existing laws. It commences with a brief explanation of the role of customary laws in state legal systems in the region. It examines a selection of cases where customary laws and transplanted contract laws have come face to face. It is argued that a pluralist approach offers the potential to move from state focussed law reform and to avoid the introduction of incompatible laws.