courts lose sight of the distinction so that the rule is changed from X alone to
become a rule with two versions, namely X and Y.
295
Application of a Rule
Application of a rule can create a second version of a rule in a similar way to
explanation. Because the reality of a rule is ultimately the facts that it
encompasses, there is a tendency to redefine a rule in terms of the facts to
which it applies. More so is this the case where certain types of facts are
frequently within the rule.
A good illustration occurred with the equitable remedy of specific
performance. An order for specific performance requires the subject party to
perform their part of a contract.
296
Specific performance is a special remedy
for breach of contract, whereas the general remedy is damages. Amongst
lawyers a popular view had arisen that specific performance was available only
for contracts for the sale of land and rare chattels. In Aristoc Industries Justice
Jacobs pointed out that the rule is not that specific performance is available
only for land and rare chattels, but that specific performance is available when
damages would be inadequate because of some special characteristic of the
property in question. Because most cases for specific performance usually
involve land or rare chattels the misconception arose that specific performance
is available only in those cases. The application had become so identified with
the rule that in the minds of many it became the rule.
Ambiguity of Competing Rules
Introduction
Ambiguity of competing rules refers to the case where two or more rules
potentially cover the same facts. It is therefore a boundary or demarcation
dispute because it involves ambiguity about the reach or scope of each of the
rules involved.
To resolve the dispute a court must make a choice. The court has to determine
that one or other rule applies. This means that the scope of the chosen rule is
confirmed as sufficiently wide to cover the facts in the case. Conversely, the
scope of each rejected rule is qualified; while the original terms of the rule
might have included the facts in the case they are now read down so as not to
295
This method of change of a formula is at the basis of a party game known
as Chinese Whispers. Participants form a circle. One person starts by turning to
the person next to them and telling them something and then asking them to pass
it on. In this way what is said goes around the circle. It is common that the final
version, told to the person who started the story, is very different from the original
one.
296
Aristoc Industries v RA Wenham (Builders) [1965] NSWR 581
 |
 |
 |