“The law of the contract is a fundamental thing that emphasizes our society which must be enforceable by law “Discuss.
Actually contract is an agreement which must be enforceable by law. Contract law is a fundamental thing that emphasizes our society. It comes very long ago in our society that government and religious law protest to make necessary contract law for own company or society. But in our real life we see that most of the men perform his best without pressure/enforced. Part of the sanctity of contract is the natural right to privacy therein. You absolutely have a right to privacy in your agreements with others.
Some agreements in our life we probably don’t care too much whether lots of other people who are not involved in the agreement know about them. We may not care much whether our neighbors know that I often agree to have pizza delivered to my home on short notice. However we will care a lot about whether all my neighbors know my salary.
No one but the parties to a contract has the right to know the terms of the contract but we will not consider my bureaucratic enemies to know the terms of the contracts and agreements. So parties should be as free as possible to make agreements by reserving their own rights and profit. But we have to consider the rule of the land whenever we are asking freedom for making contract.
Why Freedom Is Needed:
Here we can found why freedom is needed for making contract law. In our third world countries we have lots of limitation. In our country business men have always around pressure from both government side and labor side though where money is always important.
Effective arrangements shall be made in every factory for the disposal of wastes and effluents due to the manufacturing process. Our government already makes rules for solving this problem and they say to set up ETP plant and it is must. But it is so costly to make and also costly for maintenance. It is very hardy to newly established companies and the small companies. International raw material markets raising everyday so it is very challenging for those companies to survive in market. They make a proposal to our government that the government makes a central ETP for them and they will pay up for this. As a result nobody follows the rule and our environment is getting poisoned day by day.
Effective and suitable provisions shall be made in every factory for securing and maintaining in every work room, adequate ventilation by the circulation of fresh air. In this case again government suggests to follow a standard civil system. But if those companies going to follow that rule they face some financial and administration problems, they should be as free as to make their companies policy freely.
England courts in the seventeenth century, with the characteristic of strict literalism, regarded the agreement of the parties as an exclusive source for performance and interpretation; thereby they confined themselves to the bare framework provided by the parties through their contract language. In light of this premise, courts would not fill any gaps left by the parties. In this sense, the parties to the contract enjoyed the entire freedom of contract and took the full responsibility for providing the content of their contract.
Generally casual leave in our country are considered only 10 working days in a year as described on government labor law. And sick leave also considered only 14 working days in a year. But in our private companies do not maintain this leave system at all. Generally if they allow each labor to take so much leave then the chain of command of the company shall be broken. For avoiding this they need freedom to make contract with each and every labor. For this some companies give compensation against the leave.
In our country women are not equally treated and for avoiding that our government make some special rules for protecting them. The above attitudes towards the regulation of economic activities were associated with a view of the law as a body of essentially fixed doctrine, derived from divine and natural law, and to be applied in order to achieve a fair result in particular cases.. As a consequence, judges in England, and later in the American states, conceived of their role as merely discovering and applying pre-existing legal rules. This brought with it a strict conception of precedent in which judicial innovation was not permissible. At the same time, statute was conceived of largely as an expression of custom. With the gradual breakdown of these ideas, the lords and freeholder came to question to some extent the legitimacy and privileges of the Crown and of government more generally. They also began to see themselves as the owners of the land they occupied, while at the same time ideas about the ownership of property become more absolute. Similarly, ideas about freedom also became more absolute. The breakdown of central government during the Civil wars [1642-51] also disorganized the system of market control, which had come to depend on national authority that authority to regulate economic life never completely recovered even though the supervision of an expanding trade and commerce was maintained with decreasing effectiveness until well past the Restoration in 1660.
From the 1860s onwards, the English courts started to limit the application of the principle of caveat emptor. Consequently, some inquiry by the courts into the facts was needed from this date onwards. In 1884, in Foakes v. Beer, the House of Lords started to move back towards the idea of fairness in an exchange and away from the idea that a bare agreement was always binding. At the same time, the idea of freedom of contract was itself subject to increasing political challenge, particularly with the expansion in franchise. This involved a significant shift in political thinking—a shift that occurred in England and the United States. For example, in the 1880s, George Bernard Shaw opposed the appeal to free contract, free competition, free trade and laissez-faire against the regulatory activities of the State.
Similarly, philosopher T. H. Green set out to challenge the primacy of freedom of contract in his Liberal Legislation and Freedom of Contract: ‘To uphold the sanctity of contracts is doubtless a prime business of government, but it is no less its business to provide against contracts being made, which from the helplessness of one of the parties to them, instead of being a security for freedom becomes an instrument of disguised oppression.
You have a moral and legal right to enter into agreements with others. Bureaucrats don’t always recognize this moral and legal right. Fortunately, in the United States and perhaps some other common-law-based countries such as Canada, Great Britain, Australia, and New Zealand, you have many rights grounded in common law. Use of the word “grounded” actually is quite literal here, for common law is the “law of the land” (as opposed to “law of the sea” or “law of commerce” or “law of corporations”). In the United States (unlike some common-law-based countries such as Great Britain), there’s a Constitution. Individual rights which originate in you – because you exist as an individual – are further recognized by the law of the land, or common law. Even further recognition follows from a Constitution, such as the U.S. Constitution.
However, President Franklin D. Roosevelt shifted the center of gravity of the Court with a series of appointments, and the Court soon declared that economic legislation that allegedly violated freedom of contract was subject only to minimal constitutional scrutiny, to ensure that challenged legislation had a rational basis. Under this standard, the Court upheld a series of measures that would clearly have been unconstitutional under the prior regime, such as the National Labor Relations Act (United States v. Darby, 312 U.S. 100 ).
Statute of Frauds;
At an early date in English history, in order to prevent fraud by those who attempted to establish a valuable contract by the false testimony of their friends, there was enacted what is known as the Statute of Frauds. This statute provided that certain contracts could not be enforced unless they were reduced in writing and signed by the parties sought to be bound thereby. Although it’s possible for an oral contract to be made in good faith, the Statute of Frauds is best used as a defense when the oral contract itself or its major terms are in dispute. Any time a contract, whether it be written, oral or implied, is entered into, e.g., a license, permit or tax, a fraud may have been committed, and the plaintiff in this type of case should familiarize himself with all the arguments that make a contract valid, void or voidable. He should then choose which one best fits his case. Only one reason is necessary in order to prevail.
The main lesson to be learned here is that if you give up your Individual Sovereignty protected by the Law of the Land (Common Law), you then submit to be regulated by statutes such as those of FDR. But those Rights originate from you as an individual, not from any legislature or bureaucrat. They are protected by the Law of the Land (Common Law). You should consider conducting many of your affairs outside the jurisdiction of the regulatory bureaucrats. Rely on your Sovereign Rights of Privacy and Contract, which are protected by the plain, clear, and concise language of the U.S. Constitution: “No state shall pass any law impairing the obligation of contracts.” And by Hale v. Henkel, which has never been overruled for those individuals Subject only to the Law of the Land (Common Law).
You do not challenge the right of the legislature to regulate those who agree by (default) contract to be regulated. But you can conduct many of your own affairs privately under the Sanctity of Contract, because you do not accept any contract to be regulated!
1. Prof. A. A. Khan, Bangladesh Labour & Industrial Law, Students Edition
2. Nirmalendu Dhar, Labour and Industrial Laws of Bangladesh, Students Mate
5. See Farnsworth, supra note 8, at 863