Published In
Supreme Court Law Review
Document Type
Article
Publication Date
8-2023
Subjects
Contract Law, Freedom of Contract
Abstract
A review of recent developments in Contract Law reveals that Freedom of Contract continues to thrive in the jurisprudence a half-century after its supposed fall. As the analysis here shows, it is a theme which animates not only general thinking about contracts, but also court resolution of specific cases and issues. High-level considerations drive the reasoning, colouring the application of more detailed rules where these exist. And among these high-level considerations, Freedom of Contract enjoys privileged status as the default law, against which opposing considerations in practice must justify themselves as exceptions. Other considerations vary in their power to constrain Freedom of Contract. Notably, among the significant constraints are where the Freedom is complicated by an asymmetric distribution or opposing concerns about loss of wider or future freedom. Freedom is not the only value to be reckoned with. However, its abiding influence over resolution of legal problems in the area of contracts is remarkable. Arguably, the continued centrality of Freedom of Contract in modern society is surprising in light of the prevalence of circumstances such as standard form contracting and relational contracting which are not well-modelled by Freedom of Contract. This suggests that Freedom of Contract remains essential to us not as a fact, but as an idea — as a way that we like to think about contracts and issues arising in the domain of what we call Contract Law.
Citation Details
Marcus Moore, "Developments in Contract Law: The 2021-2022 Term — The Enduring Allure of Freedom of Contract" (2023) 111 Sup Ct L Rev (2d) 3.