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Sample Masters Law of Obligations Coursework

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If Parties are to have maximum substantive freedom, constraints on the substance of what can be agreed to should be kept to a minimum

Introduction

The perspective of substantial freedom is focused on improving the lives and the freedom of the people.[1]. In other words, considerable freedom is concerned with expanding the freedoms for providing value to the lives to become social persons altogether and interacting with the world in which they live. Substantial freedom is a freedom-oriented approach that tends to increase the self-reliant parties involved in a particular contract regarding the process leading up to the bargain and the substantive terms that can be agreed to[2].

One of the law’s fundamental dogmas is that every person or party is free to contract as they wish, as long as no unfairness or illegality is involved. The following paper aims to examine the value and credibility of substantive freedom in the light of specific laws, including the law of contracts, namely as contracts in the constraint of trade, agreement as to terms, contracts requiring the implication of a term, involving a penalty, or providing for the prohibition of some relevant frustration and liability.

Discussion

Substantive freedom has been argued that if the parties have maximum substantive or procedural freedom for agreeing.  It means that the law has to define the fundamental notion of agreement that should be kept liberal, fair, and confined to set the contractual agreements aside based on procedural impropriety.[3]. It reflects that if certain parties have maximum substantive

[1] Sen, Amartya. “Freedom of choice: concept and content.” European Economic Review 32, no. 2-3 (1988): 269-294.

[2] Stoop, Philip N. “The concept ‘fairness’ in the regulation of contracts under the Consumer Protection Act 68 of 2008.” PhD diss., 2013.

[3] Phillips, Michael J. “Thomas Hill Green, Positive Freedom, and the United States Supreme Court.” Emory LJ 25 (1976): 63.

Freedom means that limitations or restrictions on the substance of what can be agreed to should be kept to a minimum.

Under substantive law, the purpose of substantive freedom is to maintain the balance between the interests of specific parties involved in a contract and secure the parties’ procedural and substantive interests.[4]. Based on the parties’ substantive interests, the claim can be influenced by the rights and obligations offered by the terms.

The rights and rules mentioned in terms may influence the parties’ important proprietary, physical, economic, and social interests. From a freedom-oriented perspective, terms could be unfair where these interests of parties are unduly compromised.[5]. Based on the parties’ procedural interests, interests are influenced by the procedure that leads to the contract’s conclusion.

Suppose parties have maximum substantive freedom for bounding in a certain contract. In that case, substantive law governs how contract parties behave and defines responsibilities and rights in civil law and punishments and crimes in criminal law.[6]. Substantive law can be codified in statutes or may exist through precedents in the common law.

English law is the substantive common law regulating and restricting freedom of contract to examine the control over such space. The lawsuit between the contracting parties, issued through attempts to regulate their duties and rights by agreement, may rise to several different issues.[7]. Several reported cases assert that the difference between the contracting parties resulting from some

[4] Dawkins, Cedric E. “The principle of good faith: Toward substantive stakeholder engagement.” Journal of Business Ethics 121, no. 2 (2014): 283-295.

[5] Prassl, Jeremias. “Freedom of Contract as a General Principle of E.U. Law? Transfers of Undertakings and the Protection of Employer Rights in E.U. Labour Law: Case C-426/11 Alamo-Herron and others v Parkwood Leisure Ltd.” Industrial law journal 42, no. 4 (2013): 434-446.

[6] Ripstein, Arthur. Force and freedom. Harvard University Press, 2010.

[7] Weber, David P. “Restricting the freedom of contract: A fundamental prohibition.” Yale Hum. Rts. & Dev. L.J. 16 (2013): 51.

Disputes among them as their agreements’ contractual nature is different or may have precise effects or scope or continuance.

Parker v South Eastern (1877) [8] is relevant here, which demonstrated that notice could integrate terms reliant on the context and the logical and reasonable expectations mentioned in the given context. This case asserts that the plaintiff should not be better than others because of his exceptional stupidity, ignorance, and carelessness.

However, the railway has not sufficiently conveyed to the people that the ticket contains certain conditions. Railway Company received goods on deposit without acquiring the people’s consent for depositing them to the conditions that limit their liability. In such cases, judgment is handled through the jury that freedom of contract does not mean that parties should conduct undue promises, and specific laws restrict the unfairness of the contracting parties.

Moreover, it can be argued that the court has a substantial role to establish constraints on the substance of what can be done or agreed to should be kept to a minimum.

However, the question arises whether the court is restricted or bound by the parties’ interest to see what the contracting parties have articulated. The decisions can be made, or the court is open to interpreting or analyzing the relationship between the parties and making independent conclusions.

If the first perspective is correct, then it could be said that the court has passive control over contracts for giving legal effects to the contracting parties’ efforts. If the second perspective is correct, then courts are actively involved in establishing and regulating the contractual relationships, even to the level of making a bargain for the contracting parties that they cannot.

[8] Parker’s Case, 2 C.P.D. 416 (1877).

[9] Kennedy, Duncan. “Form and substance in private law adjudication.” Harv. l. rev. 89 (1975): 1685.

make for themselves.[10]. It asserts that despite having maximum substantive freedom, contracting parties are limited to specific constraints of what can be agreed upon. If parties have to exercise the maximum substantive freedom over the contract, they should keep minimum limitations on the substance for agreeing. For example, suppose the express terms agreed by the parties in the employment contract have minimal scope. In that case, the common law can imply which legislative decisions are made based on the judicial decision made in similar circumstances and similar tribunals.

In addition to this, the provisions of the Sale of Good Act 1893 demonstrated that agreement between the parties should be held legally and offer and acceptance should match to form a contract, and then terms are decided to be agreed on [11]. The case law of Harvey v Facey [1893] AC 552 [`12] is relevant here, which demonstrated that offer and acceptance are based on the terms agreed by both parties, and Bumper Hall Pen is agreed to be sold at the lowest price of £900, and the offer is accepted.

The other party is agreed to buy Bumper Hall Pen. In this case, parties agree on the terms made in the sale contract of Bumper Hall Pen that made certain constraints on the good to exercise maximum substantive freedom to get engaged in sale transactions significantly. It reflects that parties should seek fair standards to keep minimum constraints on the substance, such as default rules and regulations. It can be done through substantive law that defines statutes relevant to contract, the law of duress, etc.

[10] Macneil, Ian R. “Contracts: Adjustment of long-term economic relations under classical, neoclassical, and relational contract law.” Nw. U.L. Rev. 72 (1977): 854.

[11] Battersby, G., and A. D. Preston. “The Concepts of ‘Property,’ ‘Title’and’ Owner’used in the Sale of Goods Act 1893″ (1972).” MLR 35: 268.

[12] Harvey v. Facey, 1893 A.C. 552 (1893).

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The law of duress argues that contract law assures fairness and avoids unfairness within the contracts based on implying legislation on the contracts that are deemed inherently fair. [13]. Substantive fairness ensures that the parties’ bargaining is fair and that parties should agree on minimum constraints on the substance, such as coercion, illegitimate pressure, and causation. If these constraints are not limited to the substance, then the law of duress can be implied, and the contract is considered illegitimate.

It reflects that if constraints on the substance are high, then a party is pressurized, and its substantive freedom of contract is repressed. The absence of choice in the contracts does not provide substantive freedom to the parties, and constraints on the substance are kept high for the party. The case law of Dyson J, DSND v Petroleum Gas Services (2000) [14]  He Exemplified that the misrepresentation of the contractual terms could lead the party to amount to duress. Duress is an illegal practice that is secured by the law of duress (contract).

Breach of contract about the duress could reduce parties’ substantive freedom that keeps minimal constraints on the substance. However, the case of Dimskal Shipping Co S.A. v International Transport Workers Federation (The Evia Luck) (No.2) [1992] [15] is distinguished as the contractual breach using duress, which was proven and explicitly evidenced. It reflects that if parties have to exercise their substantive freedom to be bound to a contract, they should keep minimal constraints on the goods and set fair terms without misrepresenting them.

In addition to this, it is argued that constraints such as social, industrial, and commercial factors may affect the contractual agreement held between the parties. [16]. It reflects that

[13] Dressler, Joshua. “Exegesis of the law of duress: Justifying the excuse and searching for its proper limits.” S. Cal. L. Rev.62 (1988): 1331.

[14] DSND Subsea Ltd v. Petroleum Geo-Services A.S.A., 2000 B.L.R. 530 (2000).

[15} Dimskal Shipping Co S.A. v International Transport Workers Federation (The Evia Luck) (No.2) [1992] 2 A.C. 15

[16] Caves, Richard E. Creative Industries: Contracts between art and commerce. No. 20. Harvard University Press, 2000.

considerations and external constraints or pressures may be of substantial importance compared to the free expression of the parties’ freedoms. It does not mean that parties have no freedom of contract, but external constraints are only the important and relevant considerations that could change the contract’s nature. Thus, the contractual relations or contracts’ legal nature is secured by the courts that are alleged courtsputes arising from an alleged control contract.

Sometimes, courts implement some clumsy off sometimes implement a contractual situation by applying several different legislative sta. In this regard, courts have to make strenuous efforts to declare and uphold the existence of a contract between both of the parties and conduct a general determination to enter into a substantial contractual agreement. To exercise substantive freedom of contract, the contractual purpose should be evident to both of the parties. All contractual relationships should bind with the law that is giving effect to the parties’ freedom.

The fact that parties who do not want to be engaged to the law of contract then court are willing to permit rejections of the agreement’s general consequences through a legal or legitimate process. It reflects that it is not the case to prove the effectiveness of the parties’ substantive freedom. It is the case them their freedom of contract is invoked or suppressed by the substantive law, which asserts that parties are free to agree before contracting but only to the level to which the courts allow them to do so.

It is asserted that contracting parties’ intentions are free but parties have to agree on minimal substance [18]  constraints. In such a case, the court asserts what could be termed as an equitable approach to demonstrating the contractual obligations and rights of the parties. In the case-law of Campbell Discount Co. v. Bridge[3], it is reflected that the hire-purchase contract includes a hirer that intended to pay a sum using depreciation. Thus,

[17] Gaillard, Emmanuel. “Transnational Law: A Legal System or a Method of Decision Making?.” Arbitration International 17, no. 1 (2014): 59-72.

[18] Campbell Discount Co. v. Bridge, 2 All E.R. 97 (1961).

assuring the article owner to be sold on minimum payment and included in a clause that penalty would be applied on the buyer if he breaches the contractual terms of hire-purchase. It reflects that parties should set fair terms and conditions before making a contract to exercise their substantive freedom of contract with minimal substance constraints.

Conclusion

On a conclusive note, it can be concluded based on substantive findings demonstrated above that court might feel challenged to make fair decisions on rational grounds if courts are passively involved in the decisions making through listening articulation from both parties. In this regard, it has been identified that the court has a substantial role in establishing constraints on the substance of what can be done or agreed to should be kept to a minimum.

However, the question arises that the court is either restricted or bound by the parties’ interest so that only through seeing what the contracting parties have articulated and the decision can be made. Or the court is open to interpreting or analyzing the nature of the relationship between the parties and making independent conclusions.

In addition to this, it has also been identified that if parties have maximum substantive freedom for bounding in a certain contract, substantive law governs how parties of a contract behave and define responsibilities and rights in civil and punishments and crimes the criminal law.

Substantive law can be codified in statutes or may exist using precedents in the common law. The findings of different laws demonstrated that the parties should seek or set fair standards to keep minimum constraints on the substance, such as default rules and regulations. It can only be done through substantive law that defines statutes relevant to contract, the law of duress, etc.

About the law of duress, it can be concluded that contract law assures fairness and avoids unfairness within the contracts based on implying legislation on the contracts that are deemed inherently fair. Substantive fairness ensures that the bargain between the parties is a fair one and ensures that parties should be agreed on minimum constraints on the substance such as coercion, illegitimate pressure, and causation.

If these constraints are not limited to the substance, then the law of duress can be implied, and the contract is considered illegitimate. It reflects that if constraints on the substance are high, then a party is pressurized, and its substantive freedom of contract is repressed.

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Bibliography

Journal Articles

Battersby, G., and A. D. Preston. “The Concepts of ‘Property’, ‘Title’and’ Owner’used in the Sale of Goods Act 1893″ (1972).” MLR 35: 268.

Dawkins, Cedric E. “The principle of good faith: Toward substantive stakeholder engagement.” Journal of Business Ethics 121, no. 2 (2014): 283-295.

Gaillard, Emmanuel. “Transnational Law: A Legal System or a Method of Decision Making?.” Arbitration International 17, no. 1 (2014): 59-72.

Dressler, Joshua. “Exegesis of the law of duress: Justifying the excuse and searching for its proper limits.” S. Cal. L. Rev.62 (1988): 1331.

Kennedy, Duncan. “Form and substance in private law adjudication.” Harv. l. rev. 89 (1975): 1685.

Macneil, Ian R. “Contracts: Adjustment of long-term economic relations under classical, neoclassical, and relational contract law.” Nw. U.L. Rev. 72 (1977): 854.

Phillips, Michael J. “Thomas Hill Green, Positive Freedom and the United States Supreme Court.” Emory LJ 25 (1976): 63.

Prassl, Jeremias. “Freedom of Contract as a General Principle of E.U. Law? Transfers of Undertakings and the Protection of Employer Rights in E.U. Labour Law: Case C-426/11 Alamo-Herron and others v Parkwood Leisure Ltd.” Industrial law journal 42, no. 4 (2013): 434-446.

Sen, Amartya. “Freedom of choice: concept and content.” European Economic Review 32, no. 2-3 (1988): 269-294.

Stoop, Philip N. “The concept ‘fairness’ in the regulation of contracts under the Consumer Protection Act 68 of 2008.” PhD diss., 2013.

Weber, David P. “Restricting the freedom of contract: A fundamental prohibition.” Yale Hum. Rts. & Dev. L.J. 16 (2013): 51.

Books

Caves, Richard E. Creative Industries: Contracts between art and commerce. No. 20. Harvard University Press, 2000.

Ripstein, Arthur. Force and freedom. Harvard University Press, 2010.

Cases

Campbell Discount Co. v. Bridge, 2 All E.R. 97 (1961).

Dimskal Shipping Co S.A. v International Transport Workers Federation (The Evia Luck) (No.2) [1992] 2 A.C. 15

DSND Subsea Ltd v. Petroleum Geo-Services A.S.A., 2000 B.L.R. 530 (2000).

Earl of Aylesford’s Case, 8 Ch. App. 484 (1873).

Harvey v. Facey, 1893 A.C. 552 (1893).

Parker’s Case, 2 C.P.D. 416 (1877).