History, role & context of contract law Outline Origins of trade and the need for contracts Historical development Role of contract Role of contract law Context for your studies Origins of trade Development of general principles Three historical periods are particularly important: 14th - 17th Century, when general common law principles of contract law first developed Late 18th - early 20th Centuries, when 'freedom of contract' developed mid 20th Century/post war period, when 'consumer-welfare' approaches developed Development of general principles Before 14th Century the royal courts would not hear actions relating to contracts. Instead dealt with privately and/or locally Early 14th Century common law began to hear actions for breach of covenant (contract made under seal) By the end of 14th Century courts allowed claims based on trespass for defective performance of an undertaking - known as assumpsit Assumpsit is the foundation of what we now refer to as contract law Development of general principles Assumpsit needed to develop considerably to be recognisable to us today. Thoroughgood's case (1584) Slade's case (1602) Incorporation of consideration Freedom of contract Freedom to contract with whoever, for whatever Post Industrial revolution liberal economic theories of Adam Smith & David Ricardo Based on the assumption of equal bargaining power Based on a moral obligation inherent in promises/ creating expectations Courts as referees Consumer Welfare Post WWII influence of welfare state/ emerging global socialism UK context - NHS, welfare state ... Central assumption of equality of bargaining power questioned Acceptance of need for the State to intervene Courts as protectors Role of contract Role of contract (near) universal qualities: planned exchange promotes certainty, stability, order Planned exchange emphasise the complex connections which exist around many 'one- off' contracts This indicates what role contract law should play ...
Role of contract law 'if the role of the device of contract is to provide for confident planning of exchanges, the role of contract law is to mould those planned exchanges to the particular society the law serves' Jill Poole, Contract Law 10th Ed. Role of contract law Contract law reflects the political/ economic/ social philosophy that prevails in any one place (jurisdiction) and time So contract law in England & Wales reflects a complex combination of (competing/complementary?) values and philosophies applied over time, including capitalist/market driven wealth creation, class-based notions of social mobility, emerging democratisation/ social democracy/rights-awareness, consumer identity, welfare, post- welfare etc. Context for your study of contract law Cases are decided using rules/precedent But they are informed by prevailing values/priorities Contract law is a dynamic, evolving, 'live' entity which expresses multiple (sometimes conflicting) social/political/economic priorities To study contract law with an appreciation of this context is an advantage Next week: Analysing Contracts