'Tikanga' - lecture one.

Front

How was tikanga originally implemented into contract law?

Back

The principles of utu and mana generated alot of contractual obligations in pre-european NZ, when Tikanga was the law of the land.

This is because utu was a form of reciprocity. This meant that when one party would provide another party with a gift the expectation was that the other party would reciprocate this gift by providing a 'return gift' to the contracting party.

This 'return gift' needed to be of as much value as the first gift. Faliure to provide such an adequate return gift would result in a loss of 'mana'.

This suggests that that tikanga originally had pricniples of adequete considertaion, and consequenses for breach or contract that are present in ordinary contract law.

Front

What is one way that Tikanga differs from traditional contract law?

Back

Because the parties cannot stipulate the return gift that they are supposed to recive, it is very difficult for a reasonable man to see that as contractual.

This is because part of what makes a contract enforceable, is the certainty and completeness of the terms such as the price paid by one party in exchange for goods or services provided by the other party.

Front

What are some of the other way's that Tikanga is simmilar to traditional contract law, and therefore can be implemented into modern NZ contract law?

Back

The concepts of Manaki Tanga and aroha often govern the contractual relationships between the parties. This is especially the case when the parties have a familial or genealogical connection (whanaungatanga).

Manaki Tanga and aroha are concepts which denote that the parties owe each other a duty of care in terms of fulfilling their end of the bargain.

However, these obligations of the parties may be created based soley on their geneological ties (whanangatanga), and not through some formal contractual document. Moreover, these obligations can be absolved if the circumstances upon which the contract was based have been fundamentally altered.

Moreover, if the parties breach their contractual obligations, then Tikanga allows the other party to claim compensation for the damages that they suffered, from the other party.

This can come in the form of Koha (a gift or donation) at a hui (a social gathering) suggesting that Māori principles of contractual remedies are similar to the European style damages that are awarded in court.

Front

How has tikanga been implemented in NZ with regards to modren contract law?

Back

In Solomon, the vendor was a nephew of the grandmother of the purchaser, who had entered into an agreement for sale and purchase of a building.

The purchase price had not been determined at the time of entering into the bargain, and so there was uncertainty and incompleteness with respects to that aspect of the contract.

However, the court still held that because the nephew was comprehensive in Tikanga, a reasonable man would view the bargain from a tikanga perspective. This is because he has all the knowledge pertaining to the parties, including the different cultural backgrounds pertaining to the parties.

Because of this, the court called upon the evidence of an expert and held that the nephew may have intended to give the land as a gift, with the idea that the purchase price would be effective utu for the gift. 

The court held that the contract was formed after the construction of the house, not at the time of entering into the bargain.

This suggests a willingness on the part of the courts to bend the rules of contract formation, so that they can read and enforce contracts in a tikanga consistent way, where one or more of the parties intend to implement principles of tikanga into the contract.

This is how 'Tikanga' can be implemented into modern NZ contract law.

Front

What is one limit with respect to this form of contractual implementation of Tikanga, in modern NZ contract law?

Back

In Zheng, the court held that this form of contractual interpretation should only be implemented, if the parties are intending for culturally specific principles to be part of the contract, at the time of entering into the bargain.

Just because the parties have a shared cultural background, should not automatically give rise to a culturally specific interpretation of the contract.

Front

What is another way that the courts are willing to incorporate Tikanga principles in contracts in NZ?

Back

In GF, the court held that if a company expressly refers to tikanga principles in their employment contract with employees, then the courts may use those principles when interpreting and enforcing the parties obligations under the contract.

It does not matter whether the parties fully understood the tikanga principles when incorporating them, nor does it matter