Freedom of contract in English Contract law
The Government of the Russian Federation
State University-
High School of Economics
Nizhny Novgorod Branch
Law faculty
The Department of Constitutional and Administrative Law
Essay
Topic: Freedom of contract in English Contract law
Written by 10 Ю-3 group student
Buzhak A.S.
Under supervision of
Popova T. P. PhD, docent
Nizhniy Novgorod, 2013
Contract law is designed to protect not only the contractor, but also the consumer. Freedom to contract is the freedom of individuals and corporations to form contracts without government restrictions. Without the freedom to contract, the government can regulate and bring restrictions on free trade which violates the Due Process Clause of the Fourteenth Amendment. Almost every construction project, private party sale, commercial sale, and legal working is associated with contracting. Americans have heard about “freedom of press, speech, assembly, and religion”, but what about “freedom to contract”?
As we all (jurists at least) know, the law relating to freedom of contract is defined as individuals of full capacity being able to freely choose who they contract with and on what terms within that contract. This began in the nineteenth century when judges believed that people should be able to make their own decisions, since they know what is best in their interests, under the assumption that nobody would choose unfavorable terms. The courts simply acted as an umpire, ensuring parties were upholding their promises. They only interfered in special cases, including those involving misrepresentation, undue influence or illegality and it was not within their role to question whether the contract was fair.
There is a need for stability, certainty and predictability under the notion of Freedom of Contract however; even though these values play an important part, they are not absolute and there are people who require protection, especially consumers. Legislation, such as The
State University-
High School of Economics
Nizhny Novgorod Branch
Law faculty
The Department of Constitutional and Administrative Law
Essay
Topic: Freedom of contract in English Contract law
Written by 10 Ю-3 group student
Buzhak A.S.
Under supervision of
Popova T. P. PhD, docent
Nizhniy Novgorod, 2013
Contract law is designed to protect not only the contractor, but also the consumer. Freedom to contract is the freedom of individuals and corporations to form contracts without government restrictions. Without the freedom to contract, the government can regulate and bring restrictions on free trade which violates the Due Process Clause of the Fourteenth Amendment. Almost every construction project, private party sale, commercial sale, and legal working is associated with contracting. Americans have heard about “freedom of press, speech, assembly, and religion”, but what about “freedom to contract”?
As we all (jurists at least) know, the law relating to freedom of contract is defined as individuals of full capacity being able to freely choose who they contract with and on what terms within that contract. This began in the nineteenth century when judges believed that people should be able to make their own decisions, since they know what is best in their interests, under the assumption that nobody would choose unfavorable terms. The courts simply acted as an umpire, ensuring parties were upholding their promises. They only interfered in special cases, including those involving misrepresentation, undue influence or illegality and it was not within their role to question whether the contract was fair.
There is a need for stability, certainty and predictability under the notion of Freedom of Contract however; even though these values play an important part, they are not absolute and there are people who require protection, especially consumers. Legislation, such as The
References: [1] [1968] AC 269 [2] J Adams and R Brownsword, ‘The Ideologies of Contract Law’ (1987) 7 Legal Studies 205. [3] [1985] AC 1000 (PC) 1017-18 [4] Patrick Atiyah, ‘Contract and Fair Exchange’ [1985] 35 U. Toronto L.J. 1 [5] Patrick Atiyah, Essays on Contract [Oxford: Clarendon Press, 1988] p.337 [6] [1977] AC 239 [7] [1975] QB 236