Have I Misunderstood This Question?

So I recently got an assignment with the title;

"Whilst it is generally considered that a contract is an agreement arrived at by the parties, and thereafter freely entered into, the approach of the courts, and the legislature, in relation to the question of exclusion clauses, suggests that in reality that freedom exists only within certain parameters.

Critically discuss."

I just wanted to make sure my thinking was along the right lines, 'cause I'm doubting myself a little now.

So.. my initial thought is that it's a Freedom of Contract v Judicial/legislative interference question.

My plan was
- To explain what Freedom of Contract is
- To talk about how the doctrine doesn't fit in with modern commercial practice - e.g. Standard Form contracts and how they can be abused, and why this judicial interference may be needed
- Fundamental Breach and how it placed a limit on Freedom of Contract - The need for legislative intervention (UCTA 1977)
- The rejection of Fundamental breach in Photo Production v Securicor and how it reiterated the respect for FoC.
- Compare this with the exercise of discretion in George Mitchell v Finney Lock Seeds and how this discretion has further limited FoC due to uncertainty
- A brief discussion on exclusion clauses in relation to liability for negligence.

Am I on the right lines? If anyone could provide some input on how they'd perceive the question, that would be great.

Reply 1

MidgetFever

OP

21

If you don't mind, I'd love to get your opinion.

Reply 2

IpsaLoquitur

13

I think you are overly focused on fundamental breach compared to the more important issues of the common law rules on incorporation and the reasonableness standards under UCTA (negligence and standard term liability) and the CRA 2015.

Reply 3

MidgetFever

OP

21

Original post by IpsaLoquitur

I think you are overly focused on fundamental breach compared to the more important issues of the common law rules on incorporation and the reasonableness standards under UCTA (negligence and standard term liability) and the CRA 2015.

Fundamental Breach was going to be 100 words or so in passing. The reasonableness I was going to discuss in my analysis comparing Photo Production and Finney Lock Seeds, though I suppose I didn't really make that clear.

Also apologies if this comes across as stupid or ignorant but how is incorporation related to contracts entered freely? Is it the fact that they can be implied or..?

Thank you very much for your reply, by the way.

(edited 4 years ago)

Reply 4

IpsaLoquitur

13

Original post by MidgetFever

Fundamental Breach was going to be 100 words or so in passing. The reasonableness I was going to discuss in my analysis comparing Photo Production and Finney Lock Seeds, though I suppose I didn't really make that clear.

Also apologies if this comes across as stupid or ignorant but how is incorporation related to contracts entered freely? Is it the fact that they can be implied or..?

Thank you very much for your reply, by the way.

Ah right! Incorporation is relevant in that some of the incorporation rules (particularly the 'red line' notice rule) makes it more difficult to establish that onerous terms are a part of the contract, even though the parties objectively appear to have agreed to everything in a particular document. It therefore makes it somewhat harder for parties to 'agree' to an exclusion clause as freely and easily as they can agree to other clauses.

Reply 5

MidgetFever

OP

21

Original post by IpsaLoquitur

Ah right! Incorporation is relevant in that some of the incorporation rules (particularly the 'red line' notice rule) makes it more difficult to establish that onerous terms are a part of the contract, even though the parties objectively appear to have agreed to everything in a particular document. It therefore makes it somewhat harder for parties to 'agree' to an exclusion clause as freely and easily as they can agree to other clauses.

Ah, right that makes sense. I guess some of these onerous clauses are necessary to agree to too due to risk allocation and insurance considerations. Thank you for your suggestions and taking the time to explain, I really appreciate it!