The Doctrine Of Freedom Of Contract - 1504 Words

The particular focus of this essay is on how terms are implied. This is central because the courts intervene and impose implied terms when they believe that in addition to the terms the parties have expressly agreed on, other terms must be implied into the contract. Gillies argued that the courts have become more interventionist in protecting the rights of contracting parties thereby encroaching upon the notion of freedom of contract. The doctrine of freedom of contract is a prevailing philosophy which upholds the idea that parties to a contract should be at liberty to agree on their own terms without the interference of the courts or legislature. Implied terms can be viewed as a technique of construction or interpretation of contracts. It has been argued that the courts are interfering too much in their approach to determine and interpret the terms of a contract. The aim of this essay is to explore this argument further and in doing so consider whether freedom of contract is lost due to courts imposing implied terms. The essay will outline how the common law implies terms. The final part of the essay will examine whether Parliament, by means of a statute, or terms implied by custom restrict freedom in a contract. An overall conclusion on the issue will be reached. On the one hand it is evident that terms implied at common law can be ‘implied in law’ or ‘implied in fact’. Terms implied as a matter of fact are said to give effect to unexpressed intentions of theShow MoreRelatedThe Business Law Short Essay1215 Words   |  5 PagesUnfair Contract Terms) Act 2015 ()will affect from 12 November 2016. it has changed some sections to the Australian consumer law. Last version of this law only applicable to the individual consumer, Act 2015 extend the scope to the small business that employs fewer than 20 persons. 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Primary means of addressing American workers’ needs is through individual bargaining. In contrast to the UK, two facets of the system of individual contract rights in the United