Introduction to Contract
NLSIU
Classical contract theory: 3 threads
• Contract is a bargain
• Will of parties [consensus ad idem-
agreement]
• Freedom of Contract is paramount
Development of Contract Law:
Principles
• Law of obligations [vinculum juris]
Moral obligations
contractual obligations
• Law of unjust enrichment
• Law of restitution [Injurious reliance]
Courts in England
Writ of performance
Writ of debt
Writ of covenant
writ of deceit
Quid pro quo
Pacta sunt servanda
Freedom of contract ?
• ‘Contract as an instrument of free
bargaining between parties on the basis of
equality’
Freedom: Need ?
• To determine the primary obligations of
parties
• To understand the inequality of bargaining
power
• To understand public utilities
Contractual terms: Formation
Performance
• Contract may be oral or written.
• Representation
Express
Implied
Intermediate terms
• Terms/ Expressed in writing
Conditions/warranties Implied by Statute terms by customary usage Standard form of
contract
Object of Law of contract
• To avoid litigation
• To establish set of rules for compliance
• To penalize defaulters
Law of torts and Contract
• Misfeasance [transfer without title]
• Malfeasance [right act done wrongly]
• Nonfeasance [not acted when required to do so under the law]
Contract and Tort
• In some circumstances, you can contract your way out of
tort liability. [Theater owner’s case]
• Existence of a contract does not necessarily relieve a
person of liability under tort law between the contracting
parties
• Central Trust Co. v. Rafuse (1987) "Where concurrent
liability in tort and contract exists, the plaintiff has the
right to assert the cause of action that appears to be
most advantageous to him in respect of any particular
legal consequence"
Would an action stand in Tort when
the Contract is silent
• Blackpool and Fylde Aero Club v Black pool
Borough Council 1990 WLR 1195 [Tenders not
opened due to the negligence of the employee]
• Contractual Silence: Reid v Rush Tompkin
Group 1990