Contract law
1541 mots
7 pages
Within the law of contract, one can find evidence of conflicting and contradictory theories. Indeed an observer may argue that ‘the law of contract is riven by contradiction, since it embodies emphasis on both selfish individualism and an altruistic concern for the interests of the other contracting party’. These contradictions can be understood in terms of a tension between traditional orthodox theories and ideas of welfarism. Both appear to have found a place in the law of contract, which consequently leads the interpretation of contractual terms in varying directions. An example of this tension can be seen in the classification of conditions, warranties and innominate terms. In order to examine the apparent anomaly, I will briefly examine the conflicting theories, and move to an example of the conflict, namely the classification of implied terms. Following this, I will conclude with a suggestion to curb or downgrade the tension created by this conflict. As such, I will now turn to the traditional approach.The traditional orthodox approach of will theory has strongly influenced the law of contract. This body of thought functions under the guise of non-interventionism, insofar as it attempts to preserve the freedom and autonym of contracting parties.# Individuals are not prevented from entering contracts, and so the theory argues, courts should respect the outcome of their efforts. Within the will theory of contract, there exists a strong belief that the courts should not attempt to change or manipulate contracts made by free parties, but rather, should work to hold contracting parties to their commitments.# This is especially true when a party seeks to abandon an agreement that has turned out to be a bad bargain.# The non-interventionist approach fits well with an individualist-market orientation as it adheres to the principles of freedom and sanctity of contracts.# With a laissez-faire approach to adjudication, parties are allowed to bargain freely, to seek