Contract Law The South Pacific: customary and introduced law by Jennifer Corrin Care USP region. It describes the law or New Zealand or by adoption by the governing the sources of contract law in regional country itself. Common law and the USP region and examines the equity7 were continued in force at problems surrounding its application. independence by 'saving' provisions Like many other branches of the law, embodied in the independence contract law has vet to establish its own constitution or other legislation. For identity in the South Pacific. It is still example, the succeeding constitutions of based on the law of England, with little Fiji Islands have continued in force s. 35 'localisation' through national of the Supreme Court Ordinance 1875, parliaments or courts. However, there which states: are significant differences between 'The Common Law, the Rules oj Equity English law and South Pacific contract and the Statutes of general application which law. This is partly a result of the fact that Cure were injorce in England at the date when the Jennifer Cornn the English law of contract has moved on. Colony obtained a local Legislature, that is to The South Pacific is an area of diverse Legislative reforms and developments in say on the second day of January 1815, shall cultures, evidenced by the number of the common law do not necessarily apply be in force within the Colony.' languages spoken. In Vanuatu alone, in the region, due to a 'cut-off date about one hundred vernacular languages having been imposed. It is also a result of English or Commonwealth common exist. Twelve island countries within the regional innovation, both in the form of region are bound together by legislation and local case law. Finally, law? the membership of the University of the there is customary law, which governs In most countries of the region,o South Pacific ('USP'). These are: Cook agreements and disputes at the village 'saving' provisions make it clear that it is Islands, Fiji, Kiribati, Marshall Islands, level in most countries. Where the English common law (and equity) Nauru, Niue, Solomon Islands, Tokelau, customary law is now a formally which has been adopted as part of the Tonga, Tuvalu, Samoa and Vanuatu. recognised source of law it may also have law. The use of the word 'England' in effect outside the village setting. s. 35 of the Supreme Court Ordinance 1875, set out above, is an example of this. BACKGROUND There are also significant differences Provisions in Cook Islands, Kiribati, Political developments in the 1960s between the law of contract in each of Nauru, Niue, Tokelau and Tonga also saw the majority of USP countries the regional countries, and the explicitly refer to the law 'of England', or emerge as sovereign states. The general classification 'South Pacific contract law' state 'in force in England'. However, the pattern adopted was to replace pre­ is used here to distinguish the regional courts in Fiji Islands have shown an existing constituent laws with a new law from that of England and Wales inclination to follow Australian and New constitution, and to establish a rather than to denote a uniform law of Zealand contract precedents in representative parliament. These contract in South Pacific countries. These preference to the English law. For constitutions reflected a desire for laws differences are partly the result of example, in Nair v Public Trustee of Fiji and encapsulating local values and objectives different approaches taken by regional the Attorney-General of Fiji (High Court, Fiji in their preambles. Most constitutions courts, particularly in how far they are Islands, civ cas 27/1990, 8 March 1996, also expressly recognised custom as part prepared to depart from the common at 24) (unreported), Lyons], in following of the formal law. However, laws law of England. They are also the result of the Australian and New Zealand introduced prior to independence were countries having differing 'cut-off dates' approach to estoppel, said: 'saved', as a 'transitional' measure, to fill and of legislative innovation by some the void until they were replaced by new regional parliaments. The status and 'In my opinion the future of the law in Fiji laws enacted by the local parliament. This application of customary law also differs is that it is to develop its own independent normally included legislation in force in from country to country. route and relevance, taking into account its England up to a particular date, common uniqueness and perhaps looking to Australia law and equity, and 'colonial' legislation COMMON LAW AND and New Zealand for more of its direction.' made by the legislature of the country EQUITY In Samoa, it has been held that the whilst it was under the control of the Common law and equity' were phrase 'English common law and equity' imperial country. introduced in all countries of the region, in art. Ill (1) of the Constitution, which This article examines the practical other than Marshall Islands, during the continues the common law in force, is effect of this arrangement in the context colonial era. Introduction was either by 'descriptive of a system and body of law by England, Australia which originated in England' and not of 26 of the law of contract operating in the direct application Amicus Curiae Issue 23 January 2000 the law as applied in England (Opeloae OIc Conditions of application English or French law, although there are a small number of locally-enacted statutes. v Police, Supreme Court, Samoa, In all cases there are conditions on the m5092/80 (unreported)). Therefore, application of common law. Generally, courts in Samoa are tree to choose from these are that the principles must be: Foreign statutes amongst common law principles as Apart from in Marshall Islands and developed throughout the (1) consistent with the constitution Samoa, English acts apply to some extent Commonwealth. The 'saving' provisions and/or other local acts of throughout the region. The legislation in Tuvalu and Vanuatu are similar to parliament; and introduced in the LISP region is normally Samoa but have not yet been the subject (2) appropriate/suitable for local specified to be the 'statutes of general of express judicial interpretation. circumstances. application in force in England'. Thus, if There is no express reference to Accordingly, the principles of common an English act is not of general application 'England' in paragraph 2(1) of sch. 3 of law may be amended by regional statutes. it will not be part of the law. the Solomon Islands' Constitution, which They may also be discarded or modified Unfortunately, the term 'general contains the relevant provision. However, by the regional courts if they are application' is not defined. It has received the Court of Appeal, in Cheuncj v Tanda inappropriate to the country in question. some judicial attention within the region, [1984] SIER 108, held that this must be For example, in Australia and New Zealand but the case law is conflicting. In ft v Naena read in the light of para. 2(2), which Bankina Group Limited v Ale [1980 3] [1983] SIER 1, the High Court of states: WSER 468, the Supreme Court, Solomon Islands defined a statute of considering the English common law general application as 'one that regulates doctrine of unjust enrichment, held that: conduct or conditions which exist among humanity generally and in a way applicable ' ... the courts of Western Samoa should to humanity generally'. They distinguished academic niceties that not be bogcjed down by this from an act that is 'restricted to have little relevance to real life.' regulating conduct or conditions peculiar Theoretically, this renders the to or in a way applicable only to persons, distinction between English common law activities or institutions in the UK'. This and the common law developed in other definition was followed by the High Court parts of the Commonwealth, mentioned of Tuvalu in In the Matter of the Constitution above, academic. A regional court which of Tuvalu and of the Laws of Tuvalu Act 1 987 prefers a Commonwealth authority to an (unreported, High Court, Tuvalu, English authority may justify following 4/1989). However, conflicting the latter on the grounds that it is more interpretations have been applied appropriate to local circumstances. In elsewhere (see, e.g. Indian Printing and practice, courts rarely consider whether Publishing Co v Police ((1932) 3 PER 142); common law principles are appropriate. Harrisen v Holloway ((1980-88) 1 VER 147). Further, there is usually a specified date after which, theoretically, new In addition to being of general English judicial decisions will not form application, statutes, like common law, part of the law. This is sometimes must also be: referred to as the 'cut-off' date. In some 'The principles and rules oj the common (1) consistent with the constitution cases, the legislation does not make it law and equity shall so have effect and/or other local acts of clear whether there is a cut-off date. The notwithstanding any revision oj them by any parliament; and dates range from 1840 in Cook Islands, Act of the Parliament of the UK which does Niue and Tokelau, to 1980 in Vanuatu. (2) appropriate/suitable for local not have effect as part of the law of the There is no cut-off date in Tonga. The circumstances. Solomon Islands.' statutory provisions introducing cut-off As this paragraph would have no dates do not render later English STATUS-BASED DEALINGS relevance if the common law and equity decisions irrelevant. Such decisions are of countries other than England were in highly persuasive, and in practice the Dealings in a customary setting do not force in Solomon Islands, the court regional courts will nearly always follow always fit neatly into the definition of concluded that para.