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Contral Law Essay

  • Submitted by: kanderson
  • on December 12, 2011
  • Category: Miscellaneous
  • Length: 1,851 words

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Describe the idea of ‘neo-classical’ contract law? Illustrate your essay with one or more examples of relevant areas of contract law.
Roughly in the middle half of the twentieth century drastic changes occurred in the political ideology and the social and economic conditions. These changes brought about a parallel transformation in the equitable style of legal reasoning and particularly in the law of contract. As a result, the judicial focus moved away from the classical model of freedom and sanctity of contract, towards less certain notions of fairness and reasonableness.   The classical model of contract law was no longer suitable with the new ideologies in the society and became a subject of sustained attacks by academic commentators. Consequently, the neoclassical contract law emerged to address the inaccuracy and certain shortcomings of the classical model in general. It is defined “by the more collective principle of competition regulated by trade custom” and guarantees equality in the relationships between the parties. However, contract law scholars argue that the neoclassical model is still woefully inadequate to deal with the true nature and complexity of those relations and put forward a “whole different conceptualisation of contract law”.
Contract law developed in the period when the two parties of a contract had approximately the same power and were thus able to negotiate the terms of their contracts freely. However, in the modern period competition among businesses resulted in vast amounts of capital being concentrated in fewer companies, making them much more powerful than their subcontractors. This inevitably resulted in a conflict of interests because, as Durkheim explains it, “while the contracting parties needed each other, each sought to obtain what they needed at the lowest price, and to acquire the most rights possible in return for the fewest obligations.”   Unequal bargaining power raises strong presumptions that the terms of contract were...

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