Is Freedom Of Contract Outdated By Parliamentary And Judicial Intervention?

Better Essays

Is freedom of contract outdated by parliamentary and judicial intervention?

Freedom of contract is the right to choose ones contracting parties and to trade with them on any terms and conditions one sees fit contract permits individuals to create their own legal rules, adapted to their unique situations free from government interference, imposed values, and Judgments of fairness. The main notion or ideology of “freedom of contract” was given one of it its most famous legal expressions in 1875 by Sir George jessell. “ men of full age and competent understanding shall have the utmost liberty of contracting when entered into freely and voluntarily shall be held sacred and shall be enforced by the courts of justice” “the courts are not too …show more content…

A case example would be “Hutton v warren”
Another method would be terms implied as fact are based on the imputed intention of the parties and the courts have more than one way to imply this within a contract and therefore two tests have been developed, first of all the officious bystander test which originated from the shirlaw v southern foundries 1926 ( remember to reference LJ mackinnon prima facie) which in practically “had an officious bystander been present at the time the contract was being made and had suggested that a such a term should be included, it must be obvious that both parties would have agreed to it.
The second test is the Business efficacy test (mention Moorcock) this asks whether the term is necessary to give the contract business efficacy for instance would the contract make business sense without it. The courts will only imply a term where is necessary to do so (contract law by Neil Andrews 2015 pg 333 13.01 (4) ) but yet it is argued that (try to mention a case) “the officious by stander test trumps the test in the Moorcock (1889): if a putative term which is supported by the ‘business efficacy’ does not also satisfy the ‘officious bystander test’ the courts will refuse to recognise it as term to be implied in fact” (paraphrase this text:) (Contract law by Neil Andrews 2015 pg 342 13.10)
Furthermore “there would be circumstances in which courts will realise that the ‘officious bystander’ rule cannot apply. (Try

Get Access