Introduction
DOCTRINE – L.L. Fuller “Human Interaction and the Law” [1969] 14 Amer. J. Juris. 1 [p. 1-11]
– 2 types of law: made/ordinary law (enacted or declared by authority) and customary law (behavioural)
– Customary law normally dismissed, but it is basis for int’l law and the basis for understanding “ordinary law”
– Big emphasis on communication as root of it all – the need to be understood.
– “Complementary expectations” is function of law of human interaction (customary law)
– Do we need a lawmaker to have laws? No. Laws can have normative beginnings. A system of interlocking roles where there are norms, roles and sanctions.
– Salmond – “The fact that any rule has already obtained the sanction of custom, raises a presumption that it deserves to obtain a sanction of law also…” – courts should be willing to accept customs instead of recreating the rules.
– Point: contract law derives from customary law. K law as source of social order and “stable interactional expectances”. (Note: K law as law a K brings into existence)
– K is derived from words while custom is derived from actions
– Even within ongoing K, customs arise (“practical construction” of the agreement)
– K derives meaning from area of practice within which K falls + by interactions of parties entering into agreement
– How are customary laws (and contracts) created?
· Doctrine of opinio necessitatis: customary law arises out of repetitive actions when and only when such actions are motivated by a sense of obligationà Fuller doesn’t think this is good enough
· Where by his actions towards B, A has given B reasonably to understand that A will in future in similar situations act in a similar manner, and B has in some substantial way adjusted his affairs to the expectation of A’s actions, then A is bound to follow the pattern set by his past actions towards B.
· If pattern of interaction followed by A and B then spreads through the relevant community, a rule of general customary law will have been created. (This happens with standard clauses or forms in K’al situations)
Diff 1: that K law is said to spread only to contracting parties. This is too simplistic a view…especially b/c the “meeting of the minds” is being left aside for more “take-it-or-leave-it” contracts.
Diff 2: that K comes into effect at once. Again, too simplistic. Customary laws can occur overnight and Ks can have obligations which don’t materialize for a while (eg. fishes for vegetables but gotta wait for vegetable season)
DOCTRINE – P.S. Atiyah, The Rise and Fall of Freedom of Contract [1979] [p. 11-21]
– 1770-1870 = shift from property law to K law + within K from particular to general principles of K, from executed to executory Ks.
– Pothier: will theory – K is primarily an agreement based on the intention of the parties and it is their will which creates the legal obligation.
– Rise of K law coincides with devt of market economy. Rule of mkt = Rule of Law
– Emphasis on abstract nature of the fixed rules of K law and their applicability to all ppl and all subject-matters alike has been treated as positive law – certain and predictable.
– general principles of K law + free market economy à retreat from interest in substantive justice or fairness
– Principle that governs:
1) Parties deal with each other at arms length. i.e. no man is his brother’s keeper. No party owes any duty to the other until a deal is struck.
2) Each party must rely on his own sources of information – no duty of disclosure – but fraud or misrepresentation is not allowed.
3) Deal struck when parties agree or indicate agreement- but no duress or abnormal pressure
4) Parties are best judges of their own needs – the content of the contract is only for them to decide – free dealing = fair dealing
5) Parties are bound – must perform or pay damages for non-performance
– Court’s role is to ensure procedural fair play. It is an arbiter.
– Law of K based on free will where private individuals could make their own arrangements.
– Since
gives private law the formality of the political state. It is a social constitution
– Has foundational role in formation of Quebec’s legal order – it is the foundation upon which statutory regimes are built.
– It is both a derivative (from Napoleonic Code, 1804) and original (a particular blending of the ancien droit and the values of the enlightenment) work.
– Natural law view of the Code (vs. view of emerging from diversity) limited its capacity to be remoulded by judicial and doctrinal interpretation in response to socioeconomic changes
– Code is reflection of traditional values, but also emerging capitalist liberal economic values (Atiyah would agree) – e.g. freedom of K and consensualism in sale in the Code.
– CCLC embodies tensions between traditional social values dominant in rural Quebec (family, agriculture, sectarianism) and liberal values associated with urban society and developing market economy (individualism, pluralism, commerce).
– Code has religious dimensions, but also secular moral ones: good faith in contract remedies; appeal to equity in interpretation of Ks; public order and good morals as control on the freedom to negotiate private agreements specifically in relation to cause of contracts generally.
– Code’s voluntaristic character reflected in its rules on Ks.
· It’s individualistic and liberal but within limits of public order and good morals (Code is almost entirely suppletive – wide discretion to derogate from it)
· K is law of the parties
· Executory Ks made enforceable by specific performance
· Courts forbidden from altering terms of Ks lawfully agreed to.
