Topic:
A view which is certainly elementary if not fundamental is that in a democratic society, people should enjoy freedom in their contracting.
Introduction
Our society today depends upon free exchange of goods and services in the marketplace at every opportunity. The interactions we encounter in the market depends on voluntary agreements between the parties, which can never become binding without a legal contract.
Because contracts are at the heart of a democratic free-market economy, it is unsurprising that contractual freedom has taken a vital role in defining the term of contract law.
The origin of the Australian contract law can be traced back to the development of the English common law and was brought and introduced to Australia …show more content…
First, the exercise of contractual freedom between equal parties is the key to individual welfare and common good. “We have been proud of our ‘freedom of contract’, confident that the maximum of social progress will result from encouragement of each man’s initiative and ambition by giving him the right to use his economic power to the full.” Second, the enforcement of bargaining gives protection to the promises made by the parties that will be performed and contributes to the stability of the marketplace. “It is a presupposition of the whole economic order that promises will be kept. Indeed, the whole matter goes deeper. The social order rests upon stability and predictability of conduct, of which keeping promises is a large item”. Hence, the bargaining contract is the expression of liberty and stability in the marketplace. “Contracts thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way.” Lastly, actions made by the state “is an evil, for it can only have for its object the regulation of the exercise of rights, and to regulate the exercise of a right is inevitably to limit it.” It is the duty of the state to exercise restraint and to protect the right of the parties to contract …show more content…
However, this ideal of a contract, which was established in the era of economic liberalism, came to be tested. As Mason and Deane JJ summed up in Legione v Hateley:
“In the early part of this (20th) century overriding importance attached to the concept of freedom of contract and to the need to hold parties to their bargains. These considerations, though still important, should not be allowed to override competing claims based on the longstanding heads of justice and equity.”
Society is viewed composing of various groups, such as economic class or social groups instead of composed as individuals. The disparity and inequalities between the social classes were made to justify the view that in reality, the freedom of contract doctrine is nothing but a contemptuous legal advice that those from positions of power use to maintain the status quo and the ability to advantage themselves to the economic insecurities of the lower working class. Thus, the inequality of bargaining power was to be the main concern on the freedom of
A view which is certainly elementary if not fundamental is that in a democratic society, people should enjoy freedom in their contracting.
Introduction
Our society today depends upon free exchange of goods and services in the marketplace at every opportunity. The interactions we encounter in the market depends on voluntary agreements between the parties, which can never become binding without a legal contract.
Because contracts are at the heart of a democratic free-market economy, it is unsurprising that contractual freedom has taken a vital role in defining the term of contract law.
The origin of the Australian contract law can be traced back to the development of the English common law and was brought and introduced to Australia …show more content…
First, the exercise of contractual freedom between equal parties is the key to individual welfare and common good. “We have been proud of our ‘freedom of contract’, confident that the maximum of social progress will result from encouragement of each man’s initiative and ambition by giving him the right to use his economic power to the full.” Second, the enforcement of bargaining gives protection to the promises made by the parties that will be performed and contributes to the stability of the marketplace. “It is a presupposition of the whole economic order that promises will be kept. Indeed, the whole matter goes deeper. The social order rests upon stability and predictability of conduct, of which keeping promises is a large item”. Hence, the bargaining contract is the expression of liberty and stability in the marketplace. “Contracts thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way.” Lastly, actions made by the state “is an evil, for it can only have for its object the regulation of the exercise of rights, and to regulate the exercise of a right is inevitably to limit it.” It is the duty of the state to exercise restraint and to protect the right of the parties to contract …show more content…
However, this ideal of a contract, which was established in the era of economic liberalism, came to be tested. As Mason and Deane JJ summed up in Legione v Hateley:
“In the early part of this (20th) century overriding importance attached to the concept of freedom of contract and to the need to hold parties to their bargains. These considerations, though still important, should not be allowed to override competing claims based on the longstanding heads of justice and equity.”
Society is viewed composing of various groups, such as economic class or social groups instead of composed as individuals. The disparity and inequalities between the social classes were made to justify the view that in reality, the freedom of contract doctrine is nothing but a contemptuous legal advice that those from positions of power use to maintain the status quo and the ability to advantage themselves to the economic insecurities of the lower working class. Thus, the inequality of bargaining power was to be the main concern on the freedom of