examination in the middle of the nineteenth century focused on finding the
origins of contract law. Maine’s interest in the Roman law of contracts reflects
the need for finding functional origins for the needs of the new contractual
theory. In Luhmann’s terms we can describe this growing interest in contract law
as the result of increasing functional differentiation of both the economic system
and the legal system. Simply put, this increase in commerce could be seen to have
led to the development of classical contract theory in the nineteenth century.
English legal academic Patrick S Atiyah examines the emergence and demise of
freedom of contract in the nineteenth and twentieth centuries.
12 Atiyah claims
that the consent-based concept of contracts, the binding contract as a meeting of
minds, is a relative newcomer in private law. Consent-based contracts did not
exist until 1800, before which the legal evaluation of contractual relationships
was focused more on particular types of transaction and on the overall fairness of
transactions. Classical contract theory culminates in general principles and trust
placed in clear-cut ‘objective’ concepts such as an offer and its acceptance, as the
result of growing emphasis of freedom of property and the move from a
property-based to a contract-based society.
13
However, Atiyah continues by claiming that classical contract theory has come
to the end of the road, to a position where the role of contract had started to
decline in the twentieth century. Growing regulation in consumer protection,
labour laws and tenant protection have lessened the significance of classical
concepts, and this development has confined contract law to a much narrower
scope than during its prime in the 1870s. Atiyah attributes this demise to three
individual, but connected, developments. First, the role of contracts in overall
society has diminished. This follows from the growing importance of public
administrative law in protecting the weaker parties of contractual relations,
which is closely linked with the emergence of the welfare state after World War
II. The expansion of public activities has changed the concept of society, which
was centred on networking individuals freely entering bilateral contracts. According
to Atiyah, there has been a broader shift from private to public law.
14
Second, Atiyah claims, the significance of free choice as a source of legal rights
has decreased, as emphasis has moved on from promise-based rights and obligations to non-voluntary rights. This translates into the lessening importance of free
choice, consent and promises. In practice, lawyers are increasingly acknowledging
that there are other overriding values and not all contractual consequences flow
from the intention of the parties. New forms of contractual relations, e.g. standard
contracts, which are not individually negotiated, implied contracts such as riding a
bus, and compulsory contracts such as compulsory acquisition of land, all contradict the definition of contracts as consensual and voluntary meeting of the minds.
Thus, the concept of contracts expands to situations where the consensual element
is surpassed by other values and objectives.
15 However, Atiyah points out that in
the area of sexual morality the importance of (adult) consent has, in turn,
increased, showing an opposing trend to the general current.
16
Third, contractual law has shifted away from the classical executory model of
contracts that refers to remaining contractual obligations of the parties in
146 Three quests for justification
origins of contract law. Maine’s interest in the Roman law of contracts reflects
the need for finding functional origins for the needs of the new contractual
theory. In Luhmann’s terms we can describe this growing interest in contract law
as the result of increasing functional differentiation of both the economic system
and the legal system. Simply put, this increase in commerce could be seen to have
led to the development of classical contract theory in the nineteenth century.
English legal academic Patrick S Atiyah examines the emergence and demise of
freedom of contract in the nineteenth and twentieth centuries.
12 Atiyah claims
that the consent-based concept of contracts, the binding contract as a meeting of
minds, is a relative newcomer in private law. Consent-based contracts did not
exist until 1800, before which the legal evaluation of contractual relationships
was focused more on particular types of transaction and on the overall fairness of
transactions. Classical contract theory culminates in general principles and trust
placed in clear-cut ‘objective’ concepts such as an offer and its acceptance, as the
result of growing emphasis of freedom of property and the move from a
property-based to a contract-based society.
13
However, Atiyah continues by claiming that classical contract theory has come
to the end of the road, to a position where the role of contract had started to
decline in the twentieth century. Growing regulation in consumer protection,
labour laws and tenant protection have lessened the significance of classical
concepts, and this development has confined contract law to a much narrower
scope than during its prime in the 1870s. Atiyah attributes this demise to three
individual, but connected, developments. First, the role of contracts in overall
society has diminished. This follows from the growing importance of public
administrative law in protecting the weaker parties of contractual relations,
which is closely linked with the emergence of the welfare state after World War
II. The expansion of public activities has changed the concept of society, which
was centred on networking individuals freely entering bilateral contracts. According
to Atiyah, there has been a broader shift from private to public law.
14
Second, Atiyah claims, the significance of free choice as a source of legal rights
has decreased, as emphasis has moved on from promise-based rights and obligations to non-voluntary rights. This translates into the lessening importance of free
choice, consent and promises. In practice, lawyers are increasingly acknowledging
that there are other overriding values and not all contractual consequences flow
from the intention of the parties. New forms of contractual relations, e.g. standard
contracts, which are not individually negotiated, implied contracts such as riding a
bus, and compulsory contracts such as compulsory acquisition of land, all contradict the definition of contracts as consensual and voluntary meeting of the minds.
Thus, the concept of contracts expands to situations where the consensual element
is surpassed by other values and objectives.
15 However, Atiyah points out that in
the area of sexual morality the importance of (adult) consent has, in turn,
increased, showing an opposing trend to the general current.
16
Third, contractual law has shifted away from the classical executory model of
contracts that refers to remaining contractual obligations of the parties in
146 Three quests for justification