Open AccessTHE PENALTY RULE: A MODERN INTERPRETATION
Author(s) -
Kal Kc Leung
Publication year - 2017
Publication title -
denning law journal
Language(s) - English
Resource type - Journals
eISSN - 2047-2765
pISSN - 0269-1922
DOI - 10.5750/dlj.v29i1.1257
Subject(s) - doctrine , obsolescence , supreme court , law , context (archaeology) , interpretation (philosophy) , state (computer science) , political science , law and economics , sociology , philosophy , computer science , history , business , algorithm , linguistics , archaeology , marketing
This paper focuses on the common law doctrine of the penalty rule and the recent Supreme Court decision in Cavendish Square Holding v Makdessi and ParkingEye v Beavis. The state of the penalty rule prior to the judgment was unsatisfactory and criticized by both commentators and practitioners alike. Its indiscriminate application and unclear criteria was a needless source of uncertainty for both contracting parties and lawyers. Nevertheless, their Lordships in Cavendish refused to abolish the penalty rule but acknowledged its limited application in the modern commercial context. This paper accordingly aims to justify the continued existence of the doctrine on theoretical grounds within the English private law framework despite its practical obsolescence.