A Critical Evaluation on the Extent to Which 'Certainty of Outcome' and 'Proportionately of Outcome are Two Conflicting Concepts in the Development of the Three Categories of Promissory Term
| Author | Aishwarya Vydianathan |
| Position | LLB Graduate (University of Southampton) |
| Pages | 60-67 |
(2022) Vol. 12
A Critical Evaluation on the extent to which ‘Certainty of Outcome’ and
‘Proportionality of Outcome’ are Two Conflicting Concepts in the
Development of the Three Categories of Promissory Term
Aishwarya Vydianathan*
Abstract
This paper explores the conceptional tens ion between certainty of outcome and proportionality of outcome. One
school of thought, hereafter ‘traditionalism’, argues that both notions are fundamentally conflicting policy
objectives - viewed traditionally, certainty refers to the nature of the provision, whereas proportionality focuses
on the consequences. The former risks rigid application, the latter is more flexible. This paper rejects this view —
the crux of the debate lies in what ‘certainty of outcome’ means, not whether one objective is more important than
another and whether they are conflicting. Whe n viewed as such, it becomes clear that both act symbiotically,
upholding one another. There are several demonstrations of this mutuality in contract law, but this paper focuses
on promissory terms. Part I identifies the need for such policies. Part II analyses the relationship within a
promissory term context. Part III explores commercial and policy ratifications within the promissory and wider
contractual context.
Introduction
he conceptual tension at the heart of commercial contract law lies in the simultaneous
adoption of two purportedly inconsistent policy objectives:
Certainty of outcome — focuses on the nature of the provision broken but risks a rigid
and unjust application of the law providing no remedy for contract terms that are neither too
important (condition) nor trivial1 (warranty). Hereafter, ‘certainty’.
Proportionality of outcome— focuses on the consequences2 of the breach resulting in more
flexibly tailored remedies but risks an ad hoc adoption. Hereafter proportionality
This analysis proposes that the formulation of what ‘certainty of outcome’ means is at the crux
of the debate - not whether one objective is more important than another or whether they are
conflicting — both act symbiotically. Note that ‘certainty of outcome’ is distinct from ‘legal
certainty’, which will, as a fundamental principle underpinning the rule of law, also be
referenced. Viewed traditionally, this policy is analogous to ‘predictability’ - parties’ ability to
predict the outcome of their dispute. This paper rejects this formulation — although it is
* LLB Graduate (University of Southampton).
1 Sale of Goods Act 1979, s.15A
2 Qiao Liu,‘ Termination of contract for fundamental breach ’in Roger Halson, and David Campbell
(eds) Research Handbook on Remedies in Private Law, (Edward Elgar Publishing Limited, 2019),
169
T
60
To continue reading
Request your trial