Contracts: Legal Perspectives

Abstract

This article analyzes the common law of contracts from both legal and social behavioral perspectives. Section Contracts in Common and Civil Law Systems distinguishes between contract law in civil and common law systems, giving primary focus to the common law – or ‘judge made’ law – of contracts. Section Freedom to and Freedom from Contracts identifies the often seemingly irreconcilable ideological tension between the freedom of parties to and the freedom of parties from contracts. It illustrates that this tension is manifest differently according to the type of contract, such as business and consumer contracts. It also suggests that this ideological tension over contractual freedom often transcends the kind of contract in issue, focusing instead on competing conceptions of fairness and efficiency in judicial practice. Section The Judicial ‘Management’ of Common Law Contracts evaluates how judges manage contracts. It identifies different methods by which they do so, such as by interpreting contracts according to the contract text, or by implying terms into those contracts. It evaluates the perceived strengths and limitations of these methods, including the critical view that contract law can perpetuate social and economic advantage more than redress them. The conclusion is that competing conceptions of contract law, and the role of common law judges in construing them, will continue. However, these tensions are preferable to complacency or resigned acceptance of the status quo.