The term ‘freedom of contract’ is defined as: ‘axiomatic within the classical view that free dealing is fair dealing’ by Lord Devlin. The doctrine provides liberty to anyone who wishes to enter a contract, granted they hold the legal capacity to do so. However, the doctrine is largely criticised for the inequality which it may encourage, since not all parties involved hold the same level of power when entering a contract, leading to the possible infliction of damage upon the disadvantaged party. This is more commonly referred to as the inequality of bargaining power, which is the principle discussed in Lloyds Bank Ltd v Bundy. The transition from the nineteenth century into the late twentieth and early twenty-first century has seen a change …show more content…
There are evidential restrictions in place to reinforce equity between the parties, one of which is ensuring the consumers hold the required legal capacity to enter. The Minors Contract Act prohibits individuals under the age of eighteen to form a consuming party. Such restriction is to inhibit the possible oppression of the minor, as a result of differing intellectual power. Similarly, the law does not allow mentally unstable individuals to enter a contract as they may lack the reasonable intelligence, making them vulnerable to an unfair bargain. Where the element of mental incapacity is known to the other party, the contract can be set aside. This was reiterated in the case of Hart v O’Connor where an unfair bargain had been agreed with a party that fell short of the required mental capacity therefore, the trial judge held that although the element of insanity was unknown, that coupled with the inequality of bargaining power amounted to unfairness in the agreement hence, the contract was unenforceable. This case manifests the existing intervention of the law, regardless of the doctrine of freedom of contract, which aims to protect consumers of special
When discussing the concept of contract law, there exist two bodies of legal rules that may apply to the contract. These bodies are the common law of contracts and Article 2 of the Uniform Commercial Code or the UCC. The common law of contracts is court made and is constantly changing, but the UCC is required in every state within the U.S.A. It is important to know which one to use and when, as well as what the differences between them are.
Within the Social Contract Theory, living within a society requires us to have rules and laws. This gives people the groundwork for how people and governments cooperate. Individuals receive stability when they live in a social structure. This gives them security from other individuals that may want to do them wrong. In order for them to receive this protection, they have to give up some freedoms, such as being able to steal without receiving punishment. Individuals need to commit to helping make society secure, and happy.
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.
Contract laws had two problems which are old contract law principles often did not reflect modern business practices, and law had become different from one state to another. On many legal topics, contacts law included the national government has had a little to say and has allowed the state to act individually. The UCC was made as an effort to answer two problems. I was a proposal written by legal scholars not a law drafted by members of congress or stat legislatures. The scholars at the American law institute and the national conference of commissioners on uniform state laws had great ideas but they had no legal authority to make anyone do anything. Over time, lawmakers in al fifty states were persuaded to adopt many parts of the Uniform Commercial Code. They responded to persuasive arguments such as businesses will benefit if most commercial transactions are governed by the modern and efficient contract law principles that are outlined in the uniform commercial code. Also businesses everywhere will be able to operate more efficiently, and transactions will be more convenient, if the law surrounding most of their transactions is the same in all fifty states. The main focus is in the article 2 of the uniform commercial code book.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
The political world is one that impacts nearly every aspect of our day-to-day lives. Whether it be through its enforcement of laws, protection of the public, or use of taxpayer-raised monies to carry out its myriad tasks, the government makes a mark on its people. The actions of the government, while frequently ridiculed or vilified, are the result of the people themselves, operating within our system of government. So while many people may disapprove of the job Congress is doing or the direction the president is leading us in, the status quo remains the same. This is because our current state of affairs, however twisted and convoluted it may be, has been determined as a norm, and agreed to by a majority. In the following pages I will show how modern social contract theory, especially that of Thomas Hobbes and John Locke, grew into the divisive issue it is in contemporary political philosophy. I will do so by briefly unpacking the recent history of social contract theory and why it is a source of political divide today.
The social contract was first discussed by Thomas Hobbes. Hobbes was the foremost British philosopher of the 17th century. Hobbes explained what he called “the state of nature.” Now, to understand the state of nature, you first need to think of what life would be like if there were no way to enforce social rules, if there were no laws, police, or courts. This is what the state of nature would be.
In the beginning of the formation of state and the laws getting codified, the legal system as such did not recognize contracts as legal as legal entity or something in which the state will poke its nose into. They were not considered illegal, but private- between two parties in which the government will not concern itself with. This is where the concept of freedom of contract theory slowly emerged from. That meant that if one lost money or goods because the other party did not fulfil their side of the deal, there was no legal redress for such wrongs. The finite legal redress that was available was not because of the breach of contract but other factors, which used to range from an action of debt to trespass. But with the industrial revolution, laws relating to contracts slowly came into being into existence and started getting codified.
Social Contract consists in the set of rules, governing how people are to treat another, for their mutual benefits, on the condition that others follow those rules as well. The best example of the social contract is the laws and the governments.
It is becoming unquestionable that sanctity of contract and fairness are competing values that need to be balanced by courts.
phoned three people and told them “the stock is yours if you can go to
Abstract-Contract is a self-agreed, enforceable by law and deliberate agreement between two or more competent authority and parties. Contracts are made in written but may be implied or spoken, and generally have to do with another organization, employment, sale or lease, or tenancy. We assume service engagement is a part of business events. Business events such as payments, purchase, sells, delivery etc. not only impotent processes but are also inherently temporally constrained. Analysis phase is carried out to find out business event and their temporal relationships which helps business partners to analyze what to supply and what to require from others as its participates in the service engagement specified by a contract. Contracts are
Every day we make contracts. When you order your favorite coffee here you are making a simple contract with the coffee shop, and so on. We know that a number of conditions must be followed in order for the contract to be valid. One of these important conditions is the competent parties. when you make a contract, you must be sure that you make it with a person have a competent in both age and mentality. A competent party is a person of a legal age and a least normal mentality who is considered by law to be capable of understanding the meaning of a contract. A competent party is said to have contractual capacity, it's mean the ability to make a valid contract. sometimes we make a contract with minors or with mentally incompetent.