ABSTRACT
The thread that unites the cases is that a telephone call, or a cable or a telex enquiry, might have elicited information which would have allowed the contract to be performed. If one applies the Transcendent Duty to Cooperate (TDTC) to these decision-making cases, altering the general negative duty not to act capriciously perhaps allowing the Esso measure of genuine appraisal of one’s own commercial requirements as a guide, it is hard to see that this would alter the result. The TDTC requires that, where there is uncertainty, there should be an onus on a party deciding to put an end to the contract to double-check that the breach is not deliberate. Had the TDTC duty to consult and clarify been incorporated and, of course, followed, then Rhodesian Railways would probably have obtained its oil tanks, Mr Dumenil his skinned rabbits and Lindsay’s their frozen chickens.
