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Contract and Commercial Law Act 2017

Contracts legislation - Contractual remedies - Provisions purporting to prevent court inquiry

50: Statement, promise, or undertaking during negotiations

You could also call this:

“What someone says or promises before making a deal can still matter”

This part of the law is about what happens when a contract or document tries to stop a court from looking into certain things. These things are statements, promises, or actions made during negotiations before the contract was created.

The law says that even if there’s something in the contract that tries to stop the court from checking these things, the court can still look into them. The court can decide if these statements or promises were actually made, if they became part of the contract, or if someone relied on them when making the contract.

However, the court might decide not to look into these things if it thinks it’s fair and reasonable to follow what the contract says. When making this decision, the court will think about all the details of the situation. This includes what the contract is about and how much it’s worth, how much power each person had when making the deal, and whether anyone had a lawyer to help them during the negotiations or at any other important time.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM6844123.

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"Courts can check if someone had permission to make promises for others, even if a contract says they can't"

Part 2 Contracts legislation
Contractual remedies: Provisions purporting to prevent court inquiry

50Statement, promise, or undertaking during negotiations

  1. This section applies if a contract, or any other document, contains a provision purporting to prevent a court from inquiring into or determining the question of—

  2. whether a statement, promise, or undertaking was made or given, either in words or by conduct, in connection with or in the course of negotiations leading to the making of the contract; or
    1. whether, if it was so made or given, it constituted a representation or a term of the contract; or
      1. whether, if it was a representation, it was relied on.

        1. The court is not, in any proceeding in relation to the contract, prevented by the provision from inquiring into and determining any question referred to in subsection (1) unless the court considers that it is fair and reasonable that the provision should be conclusive between the parties, having regard to the matters specified in subsection (3).

        2. The matters are all the circumstances of the case, including—

        3. the subject matter and value of the transaction; and
          1. the respective bargaining strengths of the parties; and
            1. whether any party was represented or advised by a lawyer at the time of the negotiations or at any other relevant time.

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