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The Sanctity of Contracts in English Law - College of Social ...

The Sanctity of Contracts in English Law - College of Social ...

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CHAPTEE 3CURTAILMENT OF FREEDOM OF CONTRACTBY THE COMMON LAW COURTSIMPLIED TERMSTHE emphasis dur<strong>in</strong>g the n<strong>in</strong>eteenth century on<strong>in</strong>dividual freedom and the role <strong>of</strong> agreements <strong>in</strong>extend<strong>in</strong>g that freedom would seem to have requiredthat no obligation <strong>in</strong> the nature <strong>of</strong> a contract shouldbe enforced unless willed by the parties; yet thejudges were ready to import terms <strong>in</strong>to contracts anddevelop and enlarge restrictions <strong>in</strong> the public <strong>in</strong>terestalthough the parties themselves had not expressedthose terms or established those restrictions. <strong>The</strong>reis no doubt but that the early common law ruleswhereby a man was held strictly to his promise, nomore and no less, might operate harshly and unfairly<strong>in</strong> many <strong>in</strong>stances. In consequence the lot <strong>of</strong> aperson who, for some good reason, found himselfunable to secure all that he thought he had barga<strong>in</strong>edfor, or to discharge his contractual obligation as hehad conceived it, might be a hard one. <strong>The</strong> somewhatexaggerated endeavours <strong>of</strong> the courts to f<strong>in</strong>d a fairsolution to such cases is most <strong>in</strong>terest<strong>in</strong>g. One <strong>of</strong> themost popular techniques utilised by the courts forthis purpose was " the implied term."As Sir Frederick Pollock has written, our courtsformerly " were averse to go<strong>in</strong>g beyond the strict39

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