Duhaime's Law Dictionary


Freedom of Contract Definition:

That men and women have the liberty of contracting as they see fit with the expectation that those contracts will be judicially enforced if necessary, subject only to public policy.

Related Terms: Minimum Wage, Contract, Contract Law, Liberty, Testamentary Freedom

Often referred to as freedom to contract.

In Suisse Atlantique, the court referred to:

"... the general principle of English law that parties are free to contract as they may see fit."

In Printing and Numerical Registering, Justice Jessel described the principle as follows:

"... men of full age and competent understanding shall have the utmost liberty of contracting and ... their contracts when entered into freely and voluntarily shall be enforced by courts of justice."

The courts will not recognize or enforce a contract for the perpetration of an illegal act or failure to perform a legal duty or, generally, any purpose which is deemed to be contrary to public policy.

In the 1855 case of Canham v Barry, at page 619, Justice Maule wrote:

"A man may, no doubt, for a good consideration, contract to do that which he cannot be sure that he will be able to do.

"A man may, if he chooses, covenant that it shall rain tomorrow."

French: liberté contractuelle.

REFERENCES:

  • Canham v Barry, 15 C.B. 596
  • Duhaime, Lloyd, Contract Law
  • Printing and Numerical Registering Co. v Sampson, 19 Eq. 462 (1875)
  • Suisse Atlantique v NV Rotterdamsche, [1967] 1 AC 361

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