262 Contract law
Law and morals
You may know about other areas of law, and you will be able to use them
here in an overview of the system to distinguish between law and morals.
A good distinction is to compare the following:
- a practical arrangement, such as the taxing of a motor car, which is
purely a method of raising money to build and maintain roads, etc., and - the law of murder, which is clearly based upon moral and religious beliefs.
There is obviously a great overlap between many areas of the law in general
and major moral issues, for example in genetic engineering and the issue of
the use of foetal material. However, there are also many cases in contract
law which you can use to show the difference between law and morals.
For example, the case of Carlill v Carbolic Smoke Ball Company is so
familiar that we may forget the good that it did in changing the face of
Victorian advertising, and in trying to ensure that extravagant promises were
not made to consumers unless they could be backed up. Consider also the
area of legal intent. It is generally considered a moral duty for a person to
keep a promise, especially if it is given in exchange for the promise of
another, such as, ‘if you clean my car I will buy your lunch’. However, if this
is between friends or members of a family, there would be no legal obligation
involved. There is only a moral duty. Read the case of Jones v Padvatton (see
Chapter 4, p. 69) regarding this. However, wherever a binding contract exists,
a legal duty arises, so the same promise made in the context of business
would be binding. This would be a good place to discuss the idea of honorary
pledge clauses, such as Jones v Vernons Pools (see Chapter 4).
Consider the ‘reward’ cases, if a person returns a lost dog in response to
a reward notice, they are entitled to claim the reward money. If they return
the dog anyway, without having known about a reward being offered, they
are not entitled to claim any money, following the case of R v Clarke (see
Chapter 2). Does the law follow moral principles here?
You could use the developments in statute law to illustrate the way in
which Parliament has stepped in to support case law and to uphold morals.
It would be very wrong if people were led into contracts through lies. So the
Misrepresentation Act 1967 has provided a (relatively) easy route to a
remedy for such people. Equally, the Unfair Contract Terms Act 1977 has
provided protection for consumers who may be in an unfair bargaining
position and therefore open to exploitation. European law has added another
dimension to this in requiring ‘good faith’, in its directive which formed the
basis of the Unfair Terms in Consumer Contract Regulations 1999.
When changes occur in society, the law generally changes in line with
current thought. The changes in law may lag a little behind those in society,
and this is generally not a bad thing, as it would be impractical to change
the law with every fleeting fashion. Many examples can be found, and you
may well use some from your knowledge of the English legal system. For