The Accuracy of Contract Law Statements: Freedom and Implied Terms

This essay explores the accuracy of the statement that 'Freedom to contract is a fundamental right in contract law and the courts should limit the practice of implying terms into a contract where the parties themselves have omitted to do so.' The essay examines the concept of freedom of contract as a fundamental right, supported by the principle that individuals and groups should be able to form contracts without government restrictions, referencing the principle of European Contract law and the Coase Theorem. It then discusses the limitations of this freedom, such as provisions limiting liability for death and injury. The essay also analyzes the role of courts in limiting the practice of implying terms into a contract, especially when parties have omitted to do so, and the impact of implied terms. The essay references various cases and legal articles to support its arguments, ultimately concluding that the statement is accurate. The document also contains a list of references for further reading.

Terms in contract

Table of Contents
Theme 1: Providing the accuracy of Freedom to contract is a fundamental right in contract
law..........................................................................................................................................3
Theme 2: Courts should limit the practice of implying terms into a contract where the
parties themselves have omitted to do so...............................................................................4
REFERENCES...........................................................................................................................6

Theme 1: Providing the accuracy of Freedom to contract is a fundamental right in contract
law
Yes, freedom of contract is a fundamental right in a contract law because it is a
process in which an individual as well as group form a contracts without a government
restriction. Even the principle of European Contract law also stated that the freedom is related
to requirement of good faith, fair dealing as well as mandatory rules which are prescribe
under a principles. So, fundamental right is a group of rights which is known by Supreme
Court who is a higher degree of protection from government violation. Also, it is because law
infringement on a fundamental right should also be pass with strict inspection.
Generally most of the people known that freedom of contract is studied in the field of
contract theory but as per Coase Theorem, this is necessary in absence of transaction cost.
Such that when two rational parties enter into a contract at their own will, then they must be
better off when there is an absence of a contract. For example, in UK, when the case of Spier
and Whinston on 1995 has shown that not applying an contract between two parties willingly
when the contract has a negative external effects on a third party (Knapp, Crystal and Prince,
2019). Thus, freedom of contract is helps to protect for consumer in online contract which
helps the consumer to take an advantage while they also have a right of withdrawal as well.
Thus, it can be stated as a fundamental right because it safeguard the people and protect them
not to take any disadvantage from them.
On the other side, it also have a limitation such that many jurisdiction have to express
the provision at law limiting the extent to which a party may limit the contract to its liability
for death and injury. Therefore, this provision are seen as protecting the general public. But it
is also important because the freedom to enter into contracts and to direct the use of economic
resources, one owns are essential to the operation of a market. Moreover, the fundamental
rights is also made in order to protect the citizen from any wrong deeds and that is why,
freedom of contract is comes under fundamental rights in order to make a contract without
any restriction of government (Governatori and et.al., 2018). The effects of unions on growth
and prosperity is also examine at two different level and it is also examine that the effects
which union contracts have on unionized firm and industries, but unions are also affected
labor law as well.
If countries have more economic freedom which have lower unemployment rates,
lower percentage of a children in labor force. Thus, the labor market regulations also include

the rights and obligation of unions and it is depend upon country economic condition as well.
Thus, it is analyzed that freedom to contract is consider the fundamental right for the parties
because it is designed in order to make sure that people are protected and all the resources are
actually designed for safeguarding parties by complying all the terms and condition.
Moreover, this is made in 19th century because big business often use team of lawyers in
order to draft the standard contracts for a general use and this may also leads to conflict
between them (Teubner, 2019). That is why, freedom of contract is presented which means
equality in contract in which any party may enter within a contract or may leave it as well.
This is also use for business purpose such that transaction and commercial use and thus it is
use for safeguarding people and thus consider as a fundamental right as well.
Theme 2: Courts should limit the practice of implying terms into a contract where the parties
themselves have omitted to do so
As explained in the above theme that contract is generally formed on the basis of
variety of different type of element in real. These elements are generally known as Express
term in the eye of the court (Davies, 2018). These express terms can be either oral or
recorded in writing. There are many different type of terms which are generally excluded at
the time of making the real contract as a result variety of the term are generally included
after that, these sort of the term are generally describe as the implied term. Hence the real
Question which arises is that Is court or the legislation is having the right to omitted such
type of the term or not?, Answer or the analysis generally pass on the information that Court
is generally having the right to omitted any such type of implied term in the nature which is
inconsistent with the express wording of the contract which has been drafted in past. These
simply means will not give the right to implement the same if the term of contract is giving
some one extra advantage. Hence there are principle which has been also drafted which used
to determine whether a term can be implied or cannot be implied in the contract. There are
variety of the incident which has been taken place in the past as well in which court gas
limited the amount of implied term on the basis of looking at the nature and status of the
implied term which has been intended to be applied in the contract.
Court should implement the variety of the restriction in term of implying terms into a
contract where the parties themselves have omitted to do so, as in some state legislative has
restricted the right of contract in the nation on the basis of different status or capacity. These
restrictions are exception to the general rule in regards of the freedom of contract (de
Elizalde, 2017). This sort of the exception was true in the special case of variety of different

status; state can declare the contract invalid by citing a reason that the one who was intended
to enter into the contract was rather different from the purpose of executing the contract in
real. So it can be said that court has the power to limit the practices of implying the term into
the variety of different contract.
The Human Rights Act, used to clearly describes that the contract is the void or not in
nature is generally based upon the status of immigration of the one parties in contract. The
above article used to focuses on to two different sections of the laws in general, this
eventually used to means that individual existence viability is the heart of modern society
which generally used to looks at terminating the right of the contract from the individual in
the market (Implied term. 2016). At the same time article also explains the terminating the
right of the contract without understanding or evaluating the authorization and ability to have
the employment it may bring the variety of the consequences for the individual will certainly
understand the same decision as a one that their right to contract is being non existence in
nature. The article clearly identify that all the individual in the nation are generally having the
right to enter into the contract with any other parties, also court is having a good sort of
power to limit the practices which are generally implied to omit the contract which has been
generally has signed.
From the different cases and secondary resources, the accuracy of a statement is
proved and also shows that 'Freedom to contract is a fundamental right in contract law and
the courts should limit the practice of implying terms into a contract where the parties
themselves have omitted to do so”.

REFERENCES
Books and Journals
Davies, P. S., 2018. Contract formation and implied terms. The Cambridge Law
Journal. 77(1). pp.22-25.
de Elizalde, F., 2017. Should the Implied Term Concerning Quality Be Generalized? Present
and Future of the Principle of Conformity in Europe. European Review of Private Law,
(1), pp.71-108.
Governatori, G. and et.al., 2018. On legal contracts, imperative and declarative smart
contracts, and blockchain systems. Artificial Intelligence and Law. 26(4). pp.377-409.
Knapp, C.L., Crystal, N.M. and Prince, H.G., 2019. Problems in contract law: Cases and
materials. Aspen Publishers.
Teubner, G., 2019. Global Bukowina: legal pluralism in the world society. Manchester
University Press.
Online
Implied term. 2016 [ONLINE] Available through:
https://www.mondaq.com/uk/CorporateCommercial-Law/99370/What-Are-You-
Implying-When-May-Terms-Be-Implied-Into-a-Contract.