Title

Advancing the proposition that the doctrine of affirmative mutuality is a fallacy

Document Type

Journal Article

Publication Title

Journal of Contract Law

Publisher

LexisNexis

School

School of Business and Law

RAS ID

58263

Comments

Toy, N., & Yin, K. (2022). Advancing the proposition that the doctrine of affirmative mutuality is a fallacy. Journal of Contract Law, 38(2/3), 185-206. https://search.informit.org/doi/abs/10.3316/agispt.20230502087523

Abstract

‘Affirmative’ (or ‘positive’) mutuality is said to arise where specific performance would ipso facto be granted to one party because specific performance would be granted to the other. The doctrine of affirmative mutuality in Australia is described as ‘established’, albeit in the face of deep criticism. This paper propounds that the doctrine of affirmative mutuality is a fiction, because: first, affirmative mutuality is incompatible with fundamental equitable precepts and more specifically with any approach to mutuality in Australian jurisprudence; and second, even more acutely, in cases where the decree of specific performance was said to have been underpinned by affirmative mutuality, relief was in fact predicated on the express basis that damages were inadequate, not despite the adequacy of damages, the latter being a central feature of affirmative mutuality.

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