Contract law on either the promise principle or on the principle of economic efficiency Essays

Contract law on either the promise principle or on the principle of economic efficiency Essays Contract law on either the promise principle or on the principle of economic efficiency Paper Contract law on either the promise principle or on the principle of economic efficiency Paper Essay Topic: On Liberty The Social Contract In this essay, these two distinct theories will be examined respectively and illustration will be appearing in cases. Frieds explanation of contract law centers on the promise principle, which he sees as the moral basis of contract law. He suggests that all contracts are promises, which are morally enforceable according to the moral conception a promise must be kept. Therefore it is appropriate for the law to enforce them. Fried argues that by promising we transform a choice that was morally neutral into one that is morally compelled. 1 It is quite obvious that promises, from Frieds point of view, largely rest upon morality as its fundamental ground, which binds the promisor to his individual obligation of keeping his promise. This is a cultural based assumption that risks the danger of generalizing moralities. As the perception of standard of values varies through time beings and societies, it is almost impossible to generate an conception that will be well maintained and equally appreciated by all cultural and religions, especially those distinct from Western cultural basis. After all, cultural is biased, and it should not be understood as a stable or steady ground to bring up enforceability on individuals as to fulfilling certain obligations. Frieds view also presupposes an intention to be bound on the part of the promisor, an individual is morally bound to keep his promises because he has intentionally invoked a convention whose function it is to give grounds-moral grounds-for another to expect the promised performance. He advocates the conception proposed by the will theory, which sees the contractual obligation as essentially self-imposed. It is suggested that this conception carry out an implication of liberal individualism, as individuals are at free choices when facing whether to bring up such obligation at the moment of promising. Notwithstanding the fact that promise principle was embraced as an expression of the principle of liberty,4 Frieds theory gives the implication that a moral obligation attaching to a promise becomes incurred rather than accepted by the promisor. 5 Hence the mere fact of giving a promise is to create a moral obligation to perform it, which is contradictory because now the individual liberty is somehow limited by choices. He also argues that a promise puts the moral charge on a potential act. A promise is a future action or performance invested in present tense. A promise binds into the future, well past the moment when the promise is made. 6 The moral obligation to keep the promise is a mean allowing persons to take responsibility for the good they choose, which demands high attention and respect. Furthermore, the freedom to bind oneself contractually to a future disposition is an important example of this freedom on disposition because in a promise one is taking responsibility not only for ones present self but for ones future self. Putting Frieds theory on testing. In Clifton v Palumbo 7, according to Frieds idea of contract, the court decision would have favored the defendant as the plaintiff had written in his very first note offering the defendant to sell his estate. His first note of writing promised the defendant this offer and so his promise should be kept, regardless of changing his mind later, as he may free to do so, but not free to break his promise8. Nevertheless, the court has hold for the plaintiff because his first note containing phrases and expressions of doubtful significance. Therefore, it did not constitute a contract in first place. In fact, the result of this case shows that Frieds definition is too wide since not all promises are contracts. 9 Frieds thesis is based on the value of individual liberty and responsibility. In contrast, Collins principle of economic efficiency puts emphasis on the balance between the respect for individual liberty and commmunitarian values on the law. Collins defines the purpose of the law of contract as chandelling and regulation of market transactions according to ideal of social justice. 0 He outlines the significant changes in modern law contract from the classical law of contract, which focuses on liberty, equality and reciprocity as ideals of the justice of exchange that make up the conception of the market order. Collins suggests these changes in modern law of contract concerns the legitimacy of the market order. Whereas the ideal of the justice of exchange perceived the virtue of the market order in its respect for the values of liberty, equality, and reciprocity. 11 Collins sees all exchange activities are market transactions, which may involve two or multiple parties. In order to assure that these transactions are operating under a fair sphere, market order should be carefully preserved so that individual liberty will not be interfered. Therefore, he points out the importance of communitarian values on the law. In his view, the states role is to maintain the prescription of fair market. 12 Two criticisms that are brought up to against the assumption of freedom of contract as suggested in classical contract law reinforce the impact of communitarian values on law. Firstly, the freedom of contract facilitates a subtle form of domination, no less effective for being the product of an agreement than if it were imposed directly by the state. 13 Large corporations are at advantage as they may routinely dominate their suppliers through contractual arrangement. Secondly, the fairness of distributive consequence in wealth is yet another result under the influences of freedom of contract because the state ignores the equivalence in value as to both parties. In order to serve in a place of a broad discretion to make enforceable contracts of ones choice, the modern law directly imposes patterns of responsibility and closely regulates the fairness of the distributive consequences of the operation of the market. 14 Collins concludes, modern law insists that the market order can be legitimate only when it achievers a proper balance between, on the one had, a respect for individual dignity and quality and, on the other, a fair distribution of wealth, the avoidance of unjustifiable domination, and a duty to respect the interests of others. 5 In addition, Collins agrees on that court often exercising a certain degree of discretion as case to case. Its the policy considerations that largely influence judges decisions, not the general rules. Furthermore, the policy factors that are taken into account in cases, often clearly signal the presence of the balancing process between respect for private autonomy and the communitarian value of concern for the interests of another runs through the modern law of contractual responsibility. In Holwell Securities Ltd v Hughes 16, the court favors Collins idea as they took relevant policy consideration into account. The plaintiff had posted a letter to excise his option to purchase. However the letter never reached the defendant, an acceptance was not communicated to the offeror. 17 In conclusion, both Fried and Collins theories have contributed greatly to the knowledge of contract law. The promise principle examines the contract through a moral perspective, whereas the principle of economic efficiency explains the law of contract in a social context.