‘For every action, there is an equal and opposite criticism.’
(Harrison’s postulate)This kind of reasoning can be applied to many other cases, and throughout
the book there are pointers to start you thinking in this way in the form of
boxed questions. With some of these, suggested answers become obvious
as you continue to read the text (although you should, by now, feel free to
challenge, and to differ in opinion), and with others the answers are much
more open to personal persuasion. There are also suggestions for you to
find practical examples from everyday life to illustrate your work.
Fairness in contract law
Quite often, in contract law, the moral issue involved is simply one of
fairness. Does the case bring about a just result, both for the parties
involved at the time, and for those who depend on the legal authority of the
case as it forms a precedent? This can almost always be used as a point of
analytical comment when writing essays. This approach not only makes
learning the rules of contract law much more interesting, but also earns
extra marks in examinations.
An important area for analysis and comment is that of protection of the
party with weaker bargaining power. When two parties meet with equal
standing, such as two companies or two individual people in business, they
negotiate on equal terms. They are both protective of their own position, either
by earning money or in receiving goods of value. Both parties, therefore, have
strength of argument, and are said to have equal bargaining power. It is quite
different, however, if a person who is not involved in the business world, buys
an item about which they know very little from a person who is in business.
The buyer in this situation is said to lack bargaining power.
This is normally the position of the consumer, and that is why the law has
been so pro-active in protecting the consumer. A vast quantity of statute law
has evolved over the last twenty years or so, in an effort to ensure fair
bargaining for all of us when we act as consumers, doing our shopping,
travelling on public transport, and so on. We all pay for this, of course,
indirectly. If we are able to reject faulty goods, and be certain of good
service or a refund, then the cost is higher to the provider, and this cost is
eventually passed on to the consumer. There is little doubt, however, that we
would all rather pay a little more for the sake of this protection. In general
the law of consumer protection is acknowledged to be much fairer now than
thirty years ago, and is built upon strong moral arguments. In order to
prepare for synoptic assessment using other areas of contract law, do
consider all the issues raised in the main chapters. Where a question is posed,
consider your response, before going on to read the rest of the chapter.
Contract law in context 261