Freedom of Contract
“Freedom of contract is the bedrock of English private law”
Freedom of contract is defined as the: “Right of an adult to make a legally binding mutual agreement with one or more other persons, without governmental interference as to what type of obligations he or she can take upon himself or herself.”[1] English law has for a while now been known as believing in freedom of contract. This means that the state has not, normally, enforced legislation which has got in the way when it comes to the freedom of parties to accept the terms of their contracts. When looking more recently, there has been numerous advances into the principle of freedom of contract, above all when looking at consumer protection. It still happens to be the case that English law does give parties substantial flexibility both as how they finish contracts and the terms that they include.
To understand how freedom of contract is seen in English private law, it is important to understand things such as offer and acceptance and implied terms within a contract.
“Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. Agreement consists of an offer by an indication of one person (the "offeror") to another (the "offeree") of the offeror's willingness to enter into a contract on certain terms without further negotiations…”[2]
For it to amount to an offer it has to be shown that the offeror had the purpose to be bound. This is seen in Harvey v Facey [1893] UKPC 1. The outcome of this case resulted in “The Privy Council held that there was no contract concluded between the parties. Facey had not directly answered the first question as to whether they would sell and the lowest price stated was merely responding to a request for information not an offer. There was thus no evidence of an intention that the telegram sent by Facey was to be an offer.”[3]
It is important to separate an offer from an invitation to
Freedom of contract is defined as the: “Right of an adult to make a legally binding mutual agreement with one or more other persons, without governmental interference as to what type of obligations he or she can take upon himself or herself.”[1] English law has for a while now been known as believing in freedom of contract. This means that the state has not, normally, enforced legislation which has got in the way when it comes to the freedom of parties to accept the terms of their contracts. When looking more recently, there has been numerous advances into the principle of freedom of contract, above all when looking at consumer protection. It still happens to be the case that English law does give parties substantial flexibility both as how they finish contracts and the terms that they include.
To understand how freedom of contract is seen in English private law, it is important to understand things such as offer and acceptance and implied terms within a contract.
“Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. Agreement consists of an offer by an indication of one person (the "offeror") to another (the "offeree") of the offeror's willingness to enter into a contract on certain terms without further negotiations…”[2]
For it to amount to an offer it has to be shown that the offeror had the purpose to be bound. This is seen in Harvey v Facey [1893] UKPC 1. The outcome of this case resulted in “The Privy Council held that there was no contract concluded between the parties. Facey had not directly answered the first question as to whether they would sell and the lowest price stated was merely responding to a request for information not an offer. There was thus no evidence of an intention that the telegram sent by Facey was to be an offer.”[3]
It is important to separate an offer from an invitation to