LECTURE 2 - CONTRACT LAW, SITUATING THE LAW OF CONTRACT IN THE ENGLISH LEGAL SYSTEM: HISTORY, ROLE, AND CONTEXT - 01/10/19 Public Law: - Deals with relationship between citizens and state - Sets out basic rules of living - Provides the consequences of breach of rules o Criminal law, contract law Private Law: - Concerned with issues between private bodies, individuals, companies. - The state provides the legal framework for settling the disputes, but the parties are private persons or entities. - Note: a public body can be involved in a private dispute and private law will apply o E.g. transactions between companies and banks. Property Rights: - Rights in rem (property rights) o Rights attached to a 'thing' o Rights that connect a person to a thing Personal Obligations: - Rights in personam. o Deals with relationships between persons o Connects one person to another o The connection is not a thing, even though a thing might be the subject of obligation created Contract Law - Features: - Part of the law of obligations - Voluntarily created and assumed - Can create obligations for future performance - Standards of performance are usually in accordance with the terms of the contract - Remedies are aimed at putting the claimant in a position where he/she would have been in if the contract was performed satisfactorily Tort Law - Features: - Obligations created by law - Involuntarily assumed duties - Aims to prevent wrongs - Imposes standards of behaviour
- Remedies are aimed at putting the claimant in the position he/she would have been in had the tort not occurred - Robinson v PE Jones Overlap between contract and tort: - Liability arises in both contract and tort How has Contract Law Evolved? - Trade by Barter (origin) - 14th - 17th Century, when general common law principles of contract law first developed. - Late 1ttth- early 20th century, freedom of contract and classical theory - Mid-20th, when consumer welfare approaches developed. Formal contracts vs Informal - At the early development of the common law, formal contracts in the form of 'deeds' were utilised - A promise is not binding, except it is made in a 'deed' or given for consideration - English law imposes no formal requirements. Contracts do not have to be in writing - There are exceptions however o Section 4 Statute of Frauds 1677 - a guarantee for the debt/liability of another person, must be evidenced in writing. o Section 2 Law of Property Act 19tt9 - a contract for the sale or other disposition of an interest in land can ONLY be made in writing Freedom of contract vs Consumer welfare - With forever, for whatever - Courts acting as umpires - Post WWII - influence of welfare state/emerging global socialism - UK context - NHS, welfare state - Central assumption of equality of bargaining power is now questioned - Acceptance of the need for the state to intervene - Courts now acting as protectors Critical Role