Where did all the statutes go? The Contract and Commercial Law Act 2017

If you need to check the Contractual Mistakes Act after 1 September this year to work out whether your client’s mistake will help them, you might not find what you are looking for.

Sarah Pilcher

Similarly, stop and think before you send off a letter to the “other side” after that date, claiming that your client is clearly entitled to cancel a contract in reliance on section 7(2) of the Contractual Remedies Act, because the “other side” may be more up to date than you, and feel the need to point out that perhaps you meant to refer to section 37(1) of the Contract and Commercial Law Act.

The new Contract and Commercial Law Act 2017 (the Act) comes into force on 1 September this year. It will replace a number of existing Acts relating to general contract rules and sale of goods contracts.

This is the first revision Act under Parliament’s statute revision programme pursuant to Part 3 of the Legislation Act 2012.

The revision programme was introduced to make the law clearer and easier to understand. It is said this will help reduce regulatory costs for individuals and businesses.

A revision involves an update of legislation combining one or more Acts covering related subject matter into a new Act which may have a new title. The update can include omitting redundant provisions, re-numbering sections, correcting grammatical errors and typos, modernising language to achieve consistency with current drafting style and format and generally to better express the spirit and meaning of the law.

No changes to the law or effect of the law are intended to occur, other than updates of monetary amounts and the making of minor amendments to clarify Parliament’s intent or to reconcile inconsistencies between provisions.

Examples of minor amendments which were accepted as clarifying Parliament’s intent or reconciling inconsistencies in the Contract and Commercial Law Act include:

  • the addition of “carriers by air” as an extension to carriers by land or water; and
  • the replacement of the word “drunkenness” with “intoxication” (which will now include intoxication by drugs).

These changes have the effect of extending application of meaning to recognise modern life. It is interesting that they made it through the drafting process, while a recommended change to add “online advertising” as a method of giving a notice of sale in addition to the existing method of newspaper advertising was not accepted.

The Contract and Commercial Act will repeal 11 Acts as listed below, with their substantive provisions being included, consolidated and reorganised in the new Act:

  • the Carriage of Goods Act 1979;
  • the Contracts (Privity) Act 1982;
  • the Contractual Mistakes Act 1977;
  • the Contractual Remedies Act 1979;
  • the Electronic Transactions Act 2002;
  • the Frustrated Contracts Act 1944;
  • the Illegal Contracts Act 1970;
  • the Minors’ Contracts Act 1969;
  • the Sale of Goods Act 1908;
  • the Sale of Goods (United Nations Convention) Act 1994; and
  • the Wages Protection and Contractors’ Liens Act Repeal Act 1987.

Additionally, sections from other statutes are repealed and incorporated into the Act, such as the Mercantile Law Act 1908 and Mercantile Law Amendment Act 1922.

Six of the repealed Acts relate to general contract rules, and the other five are described as commercial Acts containing contract rules that apply to transactions in special contexts.

The repealed Acts are set out in four Parts and sub-parts of the new Act under “Contracts legislation”, “Sale of goods”, “Electronic transactions” and “Other commercial matters”.

There may be other Acts that would seem to complement and fit in with this group (the Consumer Guarantees Act 1993 comes to mind), but the Justice and Electoral Committee reported that these statutes were chosen for revision because they are quite old and contain out-of-date language and many repealed provisions.

The main impact this revision will have on practitioners is the need to become familiar with the new names, numbers and cross references, and to ensure that their precedents, templates and other materials are updated accordingly.

It is also an opportunity to take the time to read through the new Act and familiarise or remind yourself of some of the less well known or obscure provisions of which you may not have been aware, or thought to use in the past.

It can be surprising what you find – and one day you might be the one who can point out to the “other side” that perhaps its wharf-owning client omitted to consider section 337(2) of the Act when it sold your client’s goods without prominently displaying a copy of the notice of sale on its wharf.

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