Private contractual arrangements and government intervention

Date: Jun 12, 2015
Document Type: Article

The law was not constructed on a bare canvas, but on value-laden foundations. Ordinarily, when a house is built on a sloping block, the nature of that slope determines the type of structure erected upon it. The structure is changed to suit the conditions of the landscape, not vice-versa. It is no different with the law. In western countries, the law was built on liberal foundations, and has been shaped by the capitalist values necessary for liberalism to survive and thrive. Due to the fact that liberalism normally includes some form of market-based or capitalist economy, contract law is an integral part of the system. It is considered the independent regulator of a discreet area of social interaction; the area of private agreements.

Contract law has gradually changed over the last two centuries. Although it has retained much of its time-honoured doctrine, many changes have been made to the point where the public and private distinction is now blurred. For instance, misleading and deceptive conduct laws formulated in the Trade Practices Act 1974 (Cth) and, these days, the Australian Consumer Law, ensure the protection of consumers when contracting with businesses, but at the same time reduces the autonomy associated with the wilful entry of persons into contracts by overriding the results of bargaining. In this sense, the will of the state is incorporated into private agreements. Consumer protection legislation is but one of the formalities that need consideration during the bargaining process in order for contracts to have legal force.

This web page was created on 2 June 2015, and the law or facts contained in this article may have changed.

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