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Freedom of Contract

That men and women have the liberty of contracting as they see fit with the expectation that those contracts will be judicially enforced if necessary, subject only to public policy.

Often referred to as freedom to contract.

In Suisse Atlantique, the court refered to:

"... the general principle of English law that parties are free to contract as they may see fit."

In Printing and Numerical Registering, Justice Jessel described the principle as follows:

"... men of full age and competent understanding shall have the utmost liberty of contracting and ... their contracts when entered into freely and voluntarily shall be enforced by courts of justice."

The courts will not recognize or enforce a contract for the perpetration of an illegal act or failure to perform a legal duty or, generally, any purpose which is deemed to be contrary to public policy.

French: liberté contractuelle.

REFERENCES:

  • Duhaime, Lloyd, Contract Law
  • Printing and Numerical Registering Co. v Sampson (1875) 19 Eq. 462
  • Suisse Atlantique v NV Rotterdamsche (1967) 1 AC 361

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.

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