Contracts Are Part of Private Law

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The Answer is Agree: Those who agree will argue that judges should continue to set aside transactions where there has been a material mistake, fraud, or unfairness during bargaining.To hold parties to their contracts one hundred percent of the time is not practical in these situations.Judges should not interfere with "unwise" or "imprudent" bargains, but if the bargaining process is so flawed that it cannot plausibly be said that the parties truly consented to the arrangement, courts should strike down such deals.The purpose of freedom to contract is to ensure that people are making voluntary undertakings.

Disagree: Those who disagree will argue that anyone who enters into a contract does so because they perceive it to their advantage to do so.Because each person can choose whether to enter into the agreement or not, the system of commerce and free enterprise should not be compromised just because things do not go the way of one party as opposed to the other.This view, they will argue, is crucial for commercial stability.Business cannot succeed unless parties are able to rely on their contracts being enforced by the courts without minute inquiries into the fairness of the process by which those contracts are obtained.A free enterprise system is premised on some parties have advantages that other parties do not, and some businesses being wealthier and more powerful than others.The courts cannot interfere with this system by changing freely bargained contracts.

Contracts Are Part of Private Law

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