ARTICLES CONTRACT DOCTRINE, PREDICTABILITY AND THE NEBULOUS EXCEPTION REX AHDAR* ABSTRACT. There is a tendency in contemporary contract law for judges to “never say never” and permit an open-ended exception from the rule. This nebulous exception is designed to cater for the rare instance where application of the rule would be undesirable in the interests of justice. However, this kind of imprecise exception is deleterious in terms of the unpredictability it generates, as well as the attendant increases in time and costs that result. The “never say never” approach is to be discouraged in contract law where commercial predictability, while certainly not inviolable, nonetheless remains a weighty goal deserving of continued deference. KEYWORDS: Contract law, predictability, certainty, clarity, rule of law, imprecise exceptions, “never say never”. I. INTRODUCTION This article addresses a curious phenomenon in contemporary contract law—the extreme reluctance on occasions to affirm an existing categ- orical rule. Perhaps “curious” is too strong a word, for this reticence may be seen as another manifestation of the movement of late towards greater doctrinal flexibility and individualised justice and away from fixed, (seemingly) harsh and rigid rules in contract law. 1 And “con- temporary” is contestable, for it was a generation ago that Patrick Atiyah commented: “We have a prima facie [contract] rule, and we have a loophole, a method of escape which the judge may use if he feels the prima facie rule leads to injustice. It is impossible to be certain of * My thanks to John Smillie, Simon Connell and the anonymous reviewers for helpful comments on an earlier draft of this article. Address for correspondence: Faculty of Law, University of Otago, PO Box 56, Dunedin 9054, New Zealand. Email: rex.ahdar@otago.ac.nz. 1 See R. Bradgate, “Contract, Contract Law and Reasonable Expectations” in S. Worthington (ed.), Commercial Law and Commercial Practice (Oxford 2003), ch. 23 at p. 668. Cambridge Law Journal, 73(1), March 2014, pp. 39–60 doi:10.1017/S0008197314000014 39