Freedom of Contract - Paper 3 Flashcards
What is the theory of freedom of contract?
Parties are free to enter a legal contract that is entirely their choice. The agreement they freely reach sets out their rights and obligations under the contract
Which principle is freedom of contract linked to?
Laissez - faire (let it be)
What examples are there of contracts which illustrate the principle of freedom of contract?
Employment Contracts (ability of employers and employees to negotiate terms like salary, working hours, and job responsibilities)
Commercial Contracts (businesses negotiating terms for the sale of goods or services)
Consumer Contracts (agreements between businesses and consumers, such as purchasing products or services)
Real Estate Contracts (terms related to buying, selling, or leasing property)
How does the law on offer and acceptance support freedom of contract?
It is the basis for freedom to contract as two parties freely enter an agreement that they have full knowledge of and the law avoids getting involved unless something goes wrong as they like to leave people free to enter any contract they wish to enter
How does the law on vitiating factors support freedom of contract?
It goes against the idea of freedom of contract because you cannot be forced into the contract (economic duress) and you must freely agree to it with full knowledge of the facts (misrepresentation)
How does the law on consumer rights go against freedom of contract?
The CRA 2015 implies terms into a contract by law which neither party have agreed to, clearly going against the idea of freedom of contract
What is George Jessel’s theory of freedom of contract?
He advocated for the principle of freedom to contract arguing that individuals should have the utmost liberty to enter into agreements and that such contracts should be upheld by the courts
What is Robert Nozick’s theory of freedom of contract?
He viewed freedom of contract as an expression of individual autonomy and a fundamental aspect of a minimal state
What is Patrick Atiyah’s theory of freedom of contract?
He noted its prominence in the 18th and 19th centuries and its decline in the face of increasing regulation
