Contents of Contracts and Unfair Terms in the Myanmar Law of Contract

Abstract

This chapter examines three closely connected issues in defining the contents of contracts in Myanmar: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, to what extent additional terms are implied to supplement the express terms, or terms are rectified. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Myanmar law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Myanmar courts deal with issues of contractual interpretation and gap-filling in practice. Third, this chapter examines how Myanmar law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. The controls are extremely limited. It also analyses how the courts have the power to exercise a more indirect control by employing traditional general contract law doctrines, such as contract formation, interpretation, the rules on procedural fairness, or section 13(3) of the Burma Laws Act 1898, which makes specific reference to the principles of ‘justice, equity and good conscience’ in order to protect parties against unfair terms. Hypothetical cases are discussed to illustrate how unfair contract terms are regulated in practice.