The Rise and Fall of Freedom of Contract
Encyclopedia
The Rise and Fall of Freedom of Contract (1979) is a legal-historical text on the changes in the concept of freedom of contract
by English Professor Patrick Atiyah
. It was published by the Oxford University Press, and a paperback edition was released in 1985.
") was almost entirely absent before 1800 in the law
. Instead it was based on reliance or the receipt of a benefit. You could revoke a promise, and the concept of an executory contract
was unknown. Moreover, courts were more concerned with the fairness of an exchange, and not concerned merely to uphold promises or the parties' will. Damages reflected that, only being for the value of exchange, not the loss of a bargain.
Then, after 1800, the concept of contractual freedom "rose". Promises and the "intentions" of parties "became the paradigm of contract theory
." Atiyah argues that it began with the notion of freedom of property, summed up in the phrase of Sir Edward Coke in Semayne's case
that every man's home is his castle. Following that was the transition from a property to a contract based society.
After 1900, however, freedom of contract had had its heyday. Atiyah illustrates how the growth of consumer protection, rent and employment legislation has moved contract back into smaller confines, based on general notions of fairness.
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
by English Professor Patrick Atiyah
Patrick Atiyah
Patrick S. Atiyah QC FBA is an English lawyer and academic. He is best known for his work as a common lawyer, particularly in the law of contract and for advocating reformation or abolition of the law of tort. He was made a Fellow of the British Academy in 1979.-Biography:Atiyah is a son of the...
. It was published by the Oxford University Press, and a paperback edition was released in 1985.
Summary
The central theme is that the notion of a contract based on consent (or a "meeting of mindsMeeting of Minds
Meeting of Minds is a television series, created by Steve Allen, which aired on PBS from 1977 to 1981.The show featured guests who played significant roles in world history...
") was almost entirely absent before 1800 in the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Instead it was based on reliance or the receipt of a benefit. You could revoke a promise, and the concept of an executory contract
Executory contract
An executory contract is a contract which has not yet been performed or executed. Although material, an obligation to pay money does not usually make a contract executory. An obligation is material if a breach of contract would result from the failure to satisfy the obligation...
was unknown. Moreover, courts were more concerned with the fairness of an exchange, and not concerned merely to uphold promises or the parties' will. Damages reflected that, only being for the value of exchange, not the loss of a bargain.
Then, after 1800, the concept of contractual freedom "rose". Promises and the "intentions" of parties "became the paradigm of contract theory
Contract theory
In economics, contract theory studies how economic actors can and do construct contractual arrangements, generally in the presence of asymmetric information. Because of its connections with both agency and incentives, contract theory is often categorized within a field known as Law and economics...
." Atiyah argues that it began with the notion of freedom of property, summed up in the phrase of Sir Edward Coke in Semayne's case
Semayne's case
Semayne's Case 77 Eng. Rep. 194 ; 5 Co. Rep. 91, is an English common law case reported by Sir Edward Coke, who was then the Attorney General of England. In the US, it is recognised as establishing the "knock and announce" rule....
that every man's home is his castle. Following that was the transition from a property to a contract based society.
After 1900, however, freedom of contract had had its heyday. Atiyah illustrates how the growth of consumer protection, rent and employment legislation has moved contract back into smaller confines, based on general notions of fairness.
See also
- Atiyah's Accidents, Compensation and the LawAtiyah's Accidents, Compensation and the LawAtiyah's Accidents, Compensation and the Law is a legal text, which marked the first of Cambridge University Press's "Law in Context" series. It was originally authored by English legal scholar, Patrick Atiyah in 1970 and has been taken over by Professor Peter Cane since the 4th edition in 1987...
(1970), now (2006) and updated by Peter Cane - Just priceJust priceThe just price is a theory of ethics in economics that attempts to set standards of fairness in transactions. With intellectual roots in ancient Greek philosophy, it was advanced by Thomas Aquinas based on an argument against usury, which in his time referred to the making of any rate of interest...