Concepts Flashcards
What are the different concepts in contract law?
-Freedom to contract
-Balancing conflicting interests
What is the freedom to contract?
The right of individuals and businesses to make a contract with anyone, on any terms - basis of voluntariness
How does freedom to contract relate to the concept of laissez-faire?
means ‘let it be’ - contracts should be made without interference from the gov, especially financially, instead should be simply protecting rights of individuals who make the contract
What are the two generic examples in freedom to contract?
Employment - ability to negotiate hours, wages, holidays
Real Estate - buying, selling, leasing property
Who are the three figureheads in freedom to contract?
Sir George Jessel - judge who advocated for upmost liberty that courts should uphold
Robert Nozick - individual autonomy and minimal state
Patrick Atiyah - professor who traced the decline from increasing regulation
What is balancing conflicting interests?
The law should ensure all interests are considered and balanced, so the rights, obligations and expectations of the party are to be managed and judged fairly. If it is in a party’s favour it must be just
Who are the four thinkers in balancing conflicting interests?
-Marx
-Bentham
-Von Jhering
-Roscoe Pound
What did Marx say about balancing conflicting interests?
The only way to achieve a just and fair society is to balance - if not then society will be oppressive
What did Bentham say about balancing conflicting interests?
Achieving maximum happiness and diminishing pain (utilitarianism) could only happen by balancing interests
What did Von Jhering say about balancing conflicting interests?
Society needed law to act as a mediator for the inevitable conflicts from different interests
What did Roscoe Pound say about balancing conflicting interests?
Law as an engineering tool to create a balance between conflicting parties for social cohesion, although individual interests should never be against public issues as societies interests will always win
What are the generic examples for balancing conflicting interests?
Miller v Jackson - injunction was refused and damages awarded because public interests prevailed
CRA - interests of businesses against interests of consumers, achieves balance for weaker party through protections of rights
