What Recent Cases Really Mean?

1. I would like to examine some recent contractual case law by focusing on a few broad principles:

– differentiating between sophisticated, complex agreements drafted by skilled professionals vs short, informal agreements;
– the relative bargaining power of contracting parties; and
– how to deal with allegedly oppressive contractual terms.

2. The presentation takes a fresh look at how these issues impact on:

– interpretation of contracts, 
– how contractual terms become incorporated,
– the reasonableness of excluding a statutory term,
– assessing the reasonableness of post-termination restrictive covenants; and
– whether a contractual term is a penalty.  

3. Distinguishing between the approaches to be taken to sophisticated vs informal agreements are important for contractual analysis, but relatively straightforward – as is fashioning the proper approach to allegedly oppressive contractual terms. More uncertain and complex questions arise concerning how to address inequality of bargaining power

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