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Saturday, October 8, 2005

Contracts, Treaties and the Like

This article is useful in reorienting ourselves to remember that contracts are a subset of agreements which are themselves a type of promise. The status of contracts is related to these other types of agreements.

Llewelyn, David and Tehan, Maureen, "'Treaties', 'Agreements', 'Contracts' and 'Commitments' - What's in a Name?  The Legal Force and Meaning of Different Forms of Agreement Making."   Balayi: Culture, Law and Colonialism, Vol. 7, pp. 6-40, 2005. http://ssrn.com/abstract=815324

ABSTRACT:

The multi-dimensional nature of treaty and agreement making has assumed a central focus in the conduct of relations between Indigenous peoples and settlers in Australia and elsewhere. Whether as a means of resolving disputes, delivering government programmes, or establishing common understandings, agreement making, however defined and named, has become the key tool for engagement between Indigenous and non-Indigenous Australians. Agreements come in all shapes and sizes ranging from registered Indigenous Land Use Agreements (ILUA) to Statements of Commitment, Memorandums of Understanding and Regional Agreements. In other jurisdictions these may be called 'treaties'. This paper examines the plethora of agreements in Australia from the point of view of their enforceability,with particular reference to the categories of agreement and the status of the parties. The paper discusses various categories of agreement and the enforceability of each type. This discussion aims to provide practitioners and native title parties information to assist them choose the appropriate agreement type for their purpose, and to understand the language, meaning and consequences of particular agreements. The paper does not seek to provide an exhaustive legal analysis of the elements of each type of agreement. Rather, it highlights the significant characteristics of each type of agreement, including its common legal status and its most frequent applications. In doing so, the paper provides an accessible insight into the intersection between contract law and agreement making.

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