Understanding of Contract Law, the Lex Mercatoria - Essay Example

? Contract Law Contract Law The field of law is one of the most important fields both historically and in the contemporaryenvironment. This is from the fact that for any given setting to run appropriately laws should exist to govern and thus serve as the ultimate authority. One of the most common laws practiced is contract law which has had avid effects on the British population over time. Classical law has also had an imperative role to play in the governing of people. It is important to have an understanding of contract law from how it was formed, its principles and the various phases that it has gone through to get where it is currently and this helps in appreciating the decree and consequently the constitution as a whole. Common to many, a contract is a legal understanding that two parties come to and make promises to one another regarding a certain subject. It is legally binding and commonly involves a commercial dealing whereby by either party is bound to benefit in form of goods or services through hire or sale. Tracing the history of contract law, one comes to understand that the earliest forms of it have roots dating to the times of the industrial revolution. However, there are other aspects of contract law that shows its rise from different circumstances such as the Lex mercatoria and the civil law. The industrial revolution serves as one of the most important phases in contract law as it was the era when people started showing seriousness commercially1. The industrial revolution was characterized by the rise of many businesses and enterprises to offer employment opportunities and consequently boost peoples’ living standards. With such an active population, it was expected that some people could make use of others’ resources and time by carrying out fraud business practices. This led to the formation of laws that sought to govern both the workers and the employers and protect them from any uncouth business practices that either could carry on the other. The law not only served the employees and employers but also observed that the business practices carried out by different business entities were legal2. There are other scholars that claim that contract law came to rise as a sub-branch of civil law. History of contract law with relation to civil law is rather precise. This is from the fact that contract law is widespread from the fact that different contracts have different rules depending with the type of business activities to be carried out by the parties. This thus does not require a particular set law to govern it and makes it rather flexible and diverse. This is related to civil law in that civil law has core principles summed up and put into a referable structure and rules are made depending on the most appropriate system. This inspired present day contract law and thus the various developments witnessed3. The Lex mercatoria is also said to have been a powerful force in the formation of contract law. The Lex mercatoria acted as a system through which merchants and other business people used in Europe in the medieval era to ensure that there was the upholding of healthy business practices4. As it evolved, it gained principles that leaned more towards the common law setting. This is when a set of business people and law makers convened and sought to create a system that would support merchants of all types regardless of the types of business they carried out unlike the common law that had a particular set system. This led to the formation and rise of contract law. Shifting focus to Classical Law, it is important to understand that it is one of the oldest forms of law in existence. Classical law has its roots in Rome and thus has the synonym Roman law. The form of law receives credit as one of the oldest law systems from the fact that it comprises laws that were written in Stone tablets. Roman law has ensured that these laws are observed by the subjects it governs and amendments are rarely done on it. Classical law can relate to contract law in that the rubrics that the laws uphold are to be followed with relation to the general constitution. However, the difference between the two is that in Classical law, amendments are rarely done and this is evident from the fact that laws dating from as back as the stone tablet era are still observed. On the other hand, different commercial and geographical settings allow for changes in the contract law5. It is important to understand the essentials of a proposal and the major one is that it should be definite and not vague. This is to avoid any form of confrontation later whereby a party may claim that the instructions were not clear in case of a problem. The proposal should have a clear path of communication so that all details passed are got by the recipient. Moreover, the proposal should be unequal and should not lean more on a certain side in that it would make it unfair. The three major types of proposals are Express proposal; this is a proposal between parties with a long term interest in business. There is also the implied proposal that is bound to attract other partners and consequently create a better deal. The other type of proposal is the counter proposal that involves one of the parties seeking to nullify a previous proposal from a range of reasons6. The second principle of contract law is Acceptance. There are various essentials of acceptance and the key one is mode. The mode of acceptance plays a major role in determining the lifetime of a contract. The contract may gain acceptance by the receiving considerations whereby the party being proposed to makes several rules in the contract for it to run effectively7. This ensures that the treatment is fair for both parties and in case of any bleach in future, the recipient of the proposal does not have much claim as he had the chance to change where he found non-fitting. There is also the performing conditions mode where both parties draft an agreement as to how the contract should run without any party having an upper hand despite the proposal being carried out by one party. In the case of acceptance, one refers back to the industrial revolution where agreements had to be made by the parties in terms of the supply chain where different levels in the chain had to either accept or reject the terms given by their contactors8. The third principle of contract law is Promise. For any agreement, a promise is a vital aspect to uphold. This is because a promise is the foundation of trust and without one party promising the other a certain reward; the contract is as good as non-existent. With trust, there comes the willingness to devote a lot towards the running of the contract. There are two types of promises in Contract law. One of them is Expressed Promise whereby the parties express their sincere and utmost goals. Moreover, they vividly state what the other party is bound to benefit from in the contract9. The other one is the Implied Promise. In implied promise, the initiator of the contract offers the other party a proposal with a promise that is not realistic but the result of the contract is close to the implied promise. At the time of the proposal, the second party is not aware about the nature of the promise and it is only later that he realizes. Critically looking at the content of this principle, most of the information is about legal issues and the repercussions. This thus supports the notion that contract law rose as a consequent of civil law10. Given the diverse nature of contract law, it is important to understand that different theories have been provided with regard to it and thus the need to review them. Legal Formalism is one of the theories involved in contract law11. This is defined as the positive approach to philosophical laws with relation to different legal fields. It sees to it that it is the job of the legislature to review certain cases as opposed to giving all the ruling power to a central judge. This is from the fact that the legislature may offer diverse views on a certain concept from widespread knowledge in different fields contrary to one judge. Another theory in contract law is the objective theory. This theory states that for a contract to stand firm, the parties must carry out legally acceptable practices in their quest to achieve the various goals set at the signing of the contract. This is because various parties may sign a contract and have their intent legally acceptable but carry out practices that do not conform to the laws of the land12. The other one is Reliance whereby a company compensates for expenses got after reliance on the other party’s performance. Expectation is another aspect in the theory of recovery where there is the compensation for the total expected amount of benefits of the other party’s performance13. Patrick Atiyah has played a vital role in the development and acknowledgement of contract law. He receives credit in the Law of Contract and for being in the frontline fighting for reforms and the removal of the law of tort. His book, Introduction to the Law of Contract, has been imperative in the spread of Contract law and thus enabling people understand the various concepts in the law and the rubrics for its effective running. Atiyah has offered not only an informative view of the subject but also an argumentative view thus assisted people recognize the independence of contract law as compared to other types of laws. Patrick receives acclamation as one of the modern age philosophers in contract law from debates he carries out in his books having the reader gain an in depth view and understanding of the concepts of contract law14.Britain is one country that has embraced contract law with a lot of passion. The Lex mercatoria is the system that has received a lot of credit majorly in the British parliament from the high amount of activity that it receives in form of the corporate environment15. Bibliography W Mindy, Contract Law. (2nd edn McGraw Hill Publishers, New York 2012) 79 Y Max, Contract Law: The Basics. (3rd edn Cengage Learning, New York 2010) 117 S Richard, The Modern Law of Contract. (8th edn Oxford University Press, London 2009) 146 D Pathak, The Legal Aspects of Business. (6th edn Chicago University Press, Chicago 2011) 237 A Olufemi, Corporate Social Responsibility. (7th edn McGraw Hill Publishers, New York 2010) 143 L William, Philosophy of Private Law. (4th edn Oxford University Press, London 2008) 48 K John, Fundamental Rights, Contract Law and the Protection of the Weaker. (Oxford University Press, London 2010) 103 O Patrick, The Industrial Revolution and the British Society. (European Law Publishers, London 2011) 114 M Charles, Understanding the Industrial Revolution. (2nd edn Oxford University Press, London 2010) 49 E Keith, Causes of Action: Civil Law and Social Justice. (3rd edn Oxford University Press, London 2009) 73 B Klaus, The Creeping Codification of the New Lex Mercatoria. (5th edn Chicago University Press, Chicago 2010) 149 M Linda, Contract Law in Perspective. (European Law Publishers, London 2009) 168. M John. Civil Law: Legal Aspects of Civil Affairs. (Cengage Learning, New York 2010) 43 H Samuel. The Civil Law Tradition: An Introduction to the Legal System. (Palgrave Macmillan, New York 2008) 122 B, Peter. Briefcase on Contract Law. (2nd edn Chicago University Press, Chicago 2008) 57 Read More