In modern times, it is hard to imagine a world that is not characterized by free exchange in markets and marketplaces. These exchanges and transactions depend significantly on voluntary ‘agreements’ between the parties involved, individuals as well as other legal entities or persons. It is important to note that such voluntary agreements cannot be considered binding unless enforced by the means of a legal contract.
The very beginnings of the concept of contract law can be traced back to several Latin legal principles. One of the most important of such principles is the ‘consensus as idem’, which approximately translates into an agreement between parties. This agreement synthesizes a legal relationship between the parties and involves certain
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Contract law therefore, is not significantly found to occur in pre-commercial societies. The pre-commercial, primitive societies had their own methods of enforcing commitments and obligations of individuals, such as through close ties of kinship or religious authority. In barter economies, most business transactions were self-enforcing, as the transaction was made at that moment in time on both sides. However, it is important to note that even in primitive economies that did not conduct transactions in barter, they worked with the concept of ‘property’ rather than the notions of promise or obligation. The feature of ‘enforceable promises’ or the law of contracts characterizes a market …show more content…
This theory also postulates that contract law should not do anything else. However, it is important to note that these claims both follow from the fundamental idea that the state should enforce rules and regulations that ensure business and commercial transactions to maximize welfare.
It has also been suggested that the primary motive behind contract law is to enforce moral obligations, to encourage the increase of wealth through economic exchange and to safeguard reliance (in other words, investments) in a way that doesn’t differ from the roles played by the law of torts (Waddams, 1982).
In general, an economic transaction requires the presence of both a buyer and a seller. Based on this, four categories can be formed with respect to transactions. First, a transaction between one firm and another. Second, an individual with another individual. Third, between a firm and an individual, and lastly, an individual selling to a
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
...head?: Norms, freedom and acceptable terms in internet contracting’ (2010) 14 Journal of Internet Law 18-31
Merriam-Webster Dictionary has a two-fold definition for the word “contract”. A contract is “a binding agreement between two or more persons or parties, especially one legally enforceable” (Merriam-Webster). It is also a business agreement for the supply of goods or services at a fixed price” (Merriam-Webster). John Rawls argues that “an agreement is not necessarily fair even if it is voluntary. To be fair, an agreement must also be made against a background of equality. It is unfair if one of the contracting parties is able to take advantage of the other party because they are stronger, richer, better informed, or simply more powerful” (Sandel 30). The purpose of this essay is to affirm Rawls’ argument because I do agree that entrance into a contract does not mean that the contract is just, especially if one party is perceived to have an advantage over the terms of the contract. To do so, I will use a scenario to prove that if an agreement was made voluntarily, this is not enough to ensure that the terms agreed to are fair. I will also provide possible counterarguments for oppositions that provide criticism on Rawls’ grounds.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
Considerable effort has been expended in attempts to identify the purpose of the law of torts. However, the range of interests protected by the law of torts makes any search for a single aim underlying the law a difficult one. For example, actions for wrongful interference with goods or trespasses to land serve fundamentally different ends from an action seeking compensation for a personal injury. Nevertheless, following the research I have carried out the fundamental purpose of the law of torts is to achieve compensation and appeasement and to obtain deterrence and justice, in order to determine the conditions under which certain losses may be shifted to persons who created the risks which in some way led to the losses. In doing so, the law of torts attempts to balance the utility of a particular type of conduct against the harm it may cause. During the course of this essay I will discuss each function separately and I will investigate how each function achieves its individual resolution of a tort.
While Austin’s theory is simple and easy to follow, it is unpersuasive insofar as it apperas to be an over-simplistic and inadequate account of the law. His theory exclusively focused on law in its vertical and duty-imposing guise, habitual obeyance and largely lacked the concept of rules (Schauer, 2009). Hart noted that habits are inadequate as it cannot confer rights and authority. Further, a brief oberservation of existing laws, besides criminal law, demonstrate a wide range of laws that do not fall within the command form. An example is found in contract law which grants people the rights to independently facilitate commercial transactions rather than commanding them to behave in a certain way. If we were to subscribe to Austin’s command theory, contract law will necessarily have to be characterized as telling contract parties what they must do to enter into a contract. However, this is convoluted and glosses over the important role of the law to not only regulate human conduct, but also to create powers for the citizen to engage in conceptually antecedent conduct (Schauer, 2009). Further, Austin’s theory of legal validity fails to account for the “internal” and normative aspect of legal obligations where people obey valid laws even without the fear of a sanction or threat of force (Hart, 1994, p. 79 - 84). Such a command theory is my...
An example of this theory is when two siblings are fighting over a piece of cake, the siblings both decide to settle the dispute through a contract which states that only the person to win a game of dice could eat the cake. This is a theory that society primarily follows today in terms of the laws that bind us to the U.S. However, again, it is very difficult to create order in our society even with these laws because there is thousands of crimes being committed daily even with these “contracted” orders. Rachels states in his book The Elements of Moral Philosophy, “...none of us ever signed a “real” contract - there is no piece of paper bearing our signatures” (95). This being a true argument, leads me to believe that if society were given these terms, which they are, there would still be the small number of disobedient members that choose to do as they wish since they have not signed a legal document stating otherwise.
Both legal theory and theories of the state stand at a crossroads today. The modern state has transformed quite radically from its traditional image. According to Habermas’ account, in traditional societies, “the law made by the ruler remained subordinate to the Christian natural law administered by the Church”. The social integration was a result of bonding convictions which came from the mythical narratives and ritual practices. However, in the postmodern situation with all its complex interrogations of Universalist claims and a predominantly secular society such as ours, “the normative order is maintained without such metasocial guarantees”. Such a situation leads to a specific question: how is social order maintained amidst such disenchantment, internal differentiation and widespread plurality in the society. One way to answer this question is to come to terms with the way in which certain norms are regulated and how they bring about “willingness to comply simultaneously by means of de facto constraint and legitimate validity”. Such norms with their covert authority fuse validity with the force of the factual which in turn, “leads to a system of rights that lends to individual liberties the coercive force of law”. And, for Habermas, modern law at its core “consists of private rights that mark out the legitimate scope of individual liberties and are thus tailored to the strategic pursuit of private interests”.
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
The Social Contract is an attempt to explain the reason why individuals agree to form organized governments. The idea that a person is willing to abandon the freedoms previously enjoyed under the State of Nature in which no government interfered with their pursuits, are believed to correspond to the individual’s attempt to protect what is on their best interest.
Friend, Celeste. "Social Contract Theory [Internet Encyclopedia of Philosophy]." Internet Encyclopedia of Philosophy. Hamilton College, 15 Oct. 2004. Web. 01 Oct. 2011. .
...‘Consideration: Practical benefit and the Emperor’s new clothes’ in Beatson and Friedmann (eds). Good Faith and Fault in Contract Law (Oxford University Press, 1995);
A contract is an agreement between two parties in which one party agrees to perform some actions in return of some consideration. These promises are legally binding. The contract can be for exchange of goods, services, property and so on. A contract can be oral as well as written and also it can be part oral and part written but it is useful to have written contract otherwise issues can be created in future. But both the written as well as oral contract is legally enforceable. Also if there is a breach of contract, there are certain remedies for that which are discussed later in the assignment. There are certain elements which need to be present in a contract. These elements are discussed in the detail in the assignment. (Clarke,
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...