Law & Morality Flashcards
(8 cards)
SEE PAPER 2 THEORY
issues reflecting legal enforcement of moral values in contract law
Judges and Parliament often forced to confront complex moral issues.
Parliament can choose to legislate but judges have no choice.
If a case comes to court judges have to make a decision, and if it reaches the higher appeal courts it becomes precedent.
In civil law the principle that promises should be kept lies beneath the law of contract.
Much law of equity is founded upon principles of conscience e.g. ‘he who comes to equity must do so with clean hands’.
In the past certain contracts can be declared void because of their association with immorality
examples
1) economic duress
2) exclusion clauses
3) equity
4) fraudulent misrepresentation
5) freedom of contract
1) economic duress
Economic duress may be considered immoral.
For ED, the illegitimate pressure must be distinguished from the rough and tumble of the pressure of normal commercial bargaining-something beyond the tough commercial world.
2) exclusion clauses
Exclusion clauses can be seen as tough bargains.
The justification for these clauses is usually, if you don’t like the terms then don’t enter into the contract.
However, when exclusion clauses are oppressive and there are no realistic alternatives, the law steps in by protecting consumers either under Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015
Some may argue that these Acts of Parliament have gone too far and cases such as L’Estrange v Graucob would be unlikely to be replicated if heard today.
3) equity
Fairness
Equity reflects morality when the principal of equitable estoppel is applied
Law won’t act in favour of parties who have acted immorally
D & C Builders v Rees
4) fraudulent misrepresentation
Fraudulent misrepresentation (Derry v Peek) reflects the view that it would be wrong to allow a contract to be obtained by fraud.
5) freedom of contract
Freedom of contract allows, subject to illegality, any contract to be made.
Some contracts may be outrageous but they are not illegal.
E.g. moneylenders charging very high interest rates.
Most religions take a strong view on charging interest to lend money.
