Teaching Contract Vitiation in Australia: New Challenges in Subject Design

This article considers new challenges that potentially confront designers of contract-law syllabi in Australia, particularly in relation to assisting formative learners of the law to organize their conceptual knowledge of various factors or events that might work to ‘vitiate’ a contractual relationship apparently formed at law. Having recently prepared a new contract-law subject incorporating ‘vitiating factors’ within its purview, the authors describe the approach that they took to the design and presentation of that particular component of the course. Many, if not most, of the factors were presented as responding to particular (and quite familiar) forms of pre-contractual bargaining behaviour that subject an otherwise rational jural agent to an improper reason for intentional entry into a lawful contract. None of the vitiating factors, the authors decided, could be adequately explained in terms of single-party ‘defective consent’ alone. But no sooner had the new course been delivered than the High Court released its decision in Thorne v Kennedy. The majority of the judgments in that case immediately rendered descriptively inadequate at least part of the conceptual account that the authors had built for their learners in the subject. This article describes how that occurred and what ramifications might follow for the design and delivery of contract-law courses in Australia in the future, at least in relation to so-called ‘vitiating factors’.