Freedom of Contract in English Law
In earlier days, agreement was built on a very classic and simple basis: it is concluded at the moment that the acceptance of an offer takes place and that is all. In consequence, equal parties were non-existent and stronger parties had the possibility to impose unfair and domineering conditions upon those who were weak and vulnerable. It is in this context that both legislations and courts agreed that State action was indispensable to ensure fairness among individual parties, in an era where the exercise of law of freedom were extremely restricted.
In today’s English law, freedom of contract is one the foundation of contract law. The existence of freedom of contract requires three main considerations: the freedom to contract or not to contract, the freedom to choose with whom to contract, and the freedom to decide the terms of the contract. Thus parties are totally free to engage or not to engage in agreements.
However, freedom of contract can fail to have the desired or expected effect in contracts where power relations are not equal. The stronger party can impose its "will" to the weaker party.
In order to deal with any potential conflict that can arise from this matter, English legal systems has set up rules ensuring the effective and fair exercise of freedom of contract.
This essay will discuss and examine those rules in question, established by the English law in order to effectively balance freedom of contract and fairness between the contracting parties as well as fair contractual terms. And also on the other hand limits of freedom of contract will be exposed.
Freedom of contract, as its appellation suggests, has a strong relationship with contract. In order to identify this relationship, it is important to understand what is meant by “contract” and the rules governing it.
In English law, a contract is a legally binding agreement reached on a set of promises (or obligations) and specific terms. The validity of any
In today’s English law, freedom of contract is one the foundation of contract law. The existence of freedom of contract requires three main considerations: the freedom to contract or not to contract, the freedom to choose with whom to contract, and the freedom to decide the terms of the contract. Thus parties are totally free to engage or not to engage in agreements.
However, freedom of contract can fail to have the desired or expected effect in contracts where power relations are not equal. The stronger party can impose its "will" to the weaker party.
In order to deal with any potential conflict that can arise from this matter, English legal systems has set up rules ensuring the effective and fair exercise of freedom of contract.
This essay will discuss and examine those rules in question, established by the English law in order to effectively balance freedom of contract and fairness between the contracting parties as well as fair contractual terms. And also on the other hand limits of freedom of contract will be exposed.
Freedom of contract, as its appellation suggests, has a strong relationship with contract. In order to identify this relationship, it is important to understand what is meant by “contract” and the rules governing it.
In English law, a contract is a legally binding agreement reached on a set of promises (or obligations) and specific terms. The validity of any
References: Currie v Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554:Definition of consideration Garret v. Taylor, 79 Eng. Rep. 485 (K.B. 1620): Tortious interference Hutton v Warren (1836) 1 M&W 460:Implied terms Re McArdle(1951,CA ):Past consideration being unacceptable Sale of Goods Act 1979, ss 12-15 : Statutory implied terms Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309; [1863] EWHC QB J1: impossibility of performance of contract Wilson v. Love (1896) : Liquidated damages