ABSTRACT

So far in this book we have looked at the theories underpinning the law of contract and what happens in the course of pre-contractual negotiations. In this fifth section, we will focus on the contents of contracts. The ingredients or terms of a contract are not always easy to discover. You will already be aware from the earlier discussion of misrepresentation that certain representations made in the course of pre-contractual negotiations will become terms of the contract whilst others will be excluded from it. Even where a contract is written down and signed by both parties, you will discover that other terms may be added by the courts. In some instances, this will be done because the added terms represent what the parties intended but, in other cases, the judiciary and the legislature have shown themselves willing to rewrite parts of the contract made by two autonomous and consenting individuals. The extent to which this offends the classical notion of freedom of contract has been the subject of much discussion. Judicial and legislative activity in this area reflects the way in which notions of contractual responsibility have changed and moved away from the political ideals of individualism and laissez-faire.