Concept Essays (Contract) Flashcards
What is freedom to contract?
Parties are free to enter legal agreements, as they freely set out their rights and obligations under the contract.
What must a contract start with under freedom to contract?
An agreement, which includes offer and acceptance - an offer is the terms by which you are prepared to be bound, and it must be certain and clearly communicated (Gibson v MCC) and an acceptance is an agreement to all the terms of the offer, which must be done in any form except silence
What are the examples under freedom to contract?
Misrepresentation - as there is freedom to contract, if you have been lied to, you are allowed to exit the contract as you haven’t agreed to all the terms and circumstances
Implied terms CRA 2015 - this goes against the idea of freedom to contract as neither party has agreed to the terms within the contract
Economic Duress - Must be put under illegitimate pressure to claim for economic duress (Universe Tankships), which will then allow you to exit the contract as it was not entered into freely
Postal rule - goes against freedom to contract, as acceptance occurs as soon as letter is posted, meaning offeror could find themselves in a legally binding contract even without knowing there is acceptance
Exclusion clauses - these do not reflect freedom to contract as they limit the businesses liability/legal responsibility
Examples of contracts under freedom to contract
Employment (negotiate terms such as hours)
Commercial (businesses negotiating terms for sales)
Real estate (negotiating terms/ inclusions
What is Sir George Jessel’s theory under freedom to contract?
A 19th-century judge, Jessel argued that individuals need max freedom to enter contracts, and that the law should uphold this
What is Nozick’s theory under freedom to contract?
He viewed freedom as an expression of autonomy, and a fundamental aspect of the state
What is Atiyah’s theory under freedom to contract?
Found that freedom to contract was significantly more important in the 19th century than it is today and increasing legislation means that people have less freedom to contract due to the law’s interference
What is balancing conflicting interests?
It is simply a recognition that different interests exist, for example, a claimant’s interest is to claim for loss/damages, whereas the defendant’s interest is to limit or avoid responsibility
What must the law do with conflicting interests and what is an example of this?
The law must aim to balance these to achieve a fair and just result. For example, in Miller v Jackson, the court had to consider the private interest of the couple to enjoy their garden vs the public interest to enjoy sporting facilities. However, it has been argued that, in public v private affairs, public will always win as it concerns a largee amount of people and so the law should balance interests by making it either public v public or private v private. In Miller v Jackson, this would be the publics interest in enjoying their garden vs the public’s interest in enjoying sporting facilities or the couples private interest in enjoying their garden vs a private individuals interest in enjoying sporting facilities.
Who are the four theorists under balancing conflicting interests ane what do they say?
Roscoe Pound believed that the law was an engineering tool, meaning the law will try to engineer a balance between the two parties to achieve social cohesion. He also stated that public issues should never be balanced against private but instead public v public or private v private
Karl Marx believed that the only way society could achieve justice and fairness is through balancing conflicting objectives, or it would otherwise be oppressive
Von Jhering suggested that society needed law to regulate the conflicts that would inevitably arise between the different interests, and argued that the law acted as a mediator between both parties
Jeremy Benthem believed in the principle of achieving maximum happiness for the majority of people, through balancing the different objectives within society, regardless of the minority
