Law, Fairness and Economics – Unilateral Mistake in Digilandmall
Kwek Mean Luck
(2005) 17 SAcLJ 411
To the extent that sanctity and freedom of contract have been regarded as the cornerstone of English contract law, the stated role of fairness in contract law has been minimised. The principle of sanctity of contract preserves commercial certainty, and allows for commercial transactions to proceed smoothly. This is in contrast to the vagaries brought about by arguments of fairness. This article examines the doctrine of unilateral mistake as considered in Chwee Kin Keong v Digilandmall.com Pte Ltd. It argues that the result there is both fair and economically grounded. It then explores and proposes an alternative view of contract – one that sees fairness intertwined comfortably with and supporting commerce, in contrast to the positivist approach which draws a sharp distinction between law and seemingly extra-legal factors.