Traditional Approach (certainty) Flashcards
What is the purpose of contract under the traditional approach
The purpose of contract law under this head is to facilitate and encourage commerce, dealings in the market place and promote individual autonomy
What are the key principles that promote this purpose
the “will” theory, freedom and sanctity
the will theory
Terms of contract should reflect the will of the parties - Biotech
freedom of contract
parties should be free to contract, it is not up to the courts to decide whether the contract is fair or not - Cavendish
Sanctity:
parties should be held to the bargains they agree to
What are the 2 advantages of the traditional approach
Enhances moral value of freedom by giving people a measure of control over their future (moral) and allowing voluntary exchange bargains promotes allocating generally scarce resources to those who will use them most effectively (economic) - Smilie
Policy objective: “the desirability of providing the certainty needed to facilitate the efficient conduct of commerce; clarity in the law is highly desirable” - Bathurst
3 examples of traditional approach
The rule on signature
- L’Estrange - When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing is bound, and it is wholly immaterial whether he has read the document or not. (applied in Toll
Battle of forms approach
- Tekdata - last terms sent are the ones that apply
Rejection of duty of good faith
Times Travel - the uncertainty caused by introducing that duty is not worth it
4 critiques
Certainty is largely illusory because the law is incorrigibly indeterminate - Thomas
Judicial autonomy is needed to ensure justice on individual cases
Certainty favours the powerful. Where rules are rigid each person is guided by self interest which may ultimately serve the interests of the rich and powerful
