Contract Formation

Contract Formation

Contract law is one of the most important area of the law that affects us all in our daily lives.  Although we seldom sign a written document, we go into shops daily, we travel on public transport, we park in parking lots - these are largely all contracts into which we bind ourselves to terms and conditions.  We may not be strictly aware of it, but we all participate in contractual obligations on both sides of the fence every single day.  It is therefore no surprise that the issue of when exactly a contract is formed is of the utmost importance in regulating commerce and life as a consumer.  Furthermore, how can we enforce our contracts, and what rights do we have under these contracts that we agree to almost subliminally day in day out.  In this article, we will look at some of the key issues surrounding contract formation, and general principles of the law on contract, which govern transactions we experience in our daily lives.

In general laymen's terms, we think of a contract as a detailed written document, and we understand that when we sign that dotted line, there's no turning back.  Actually, that's a myth.  Of course, there is definitely the possibility of receiving a written contract to sign, and indeed this would be legally binding.  However there is a very real possibility of being legally bound to a contract that you don't even realise exists.  A contract can be formed by way of simply verbally saying you agree to buy some item.  That is sufficient to bind you in law for most transactions, and on that basis it would be perfectly feasible to found a claim for breach.  Of course, the difficulty then arises in proving what was said, which is why in practical terms more often than not a written document is used for transactions of a substantial nature.  This avoids the problem of frivolous claims as to who said what and when such and such a term was agreed, which can lead to complications and lead to lengthy litigation

Contracts are generally formed at the concurrence of offer and acceptance.  That means when you make an offer to buy something, and it is accepted by the seller, that then forms a contract between the two respective parties to the effect of ownership will be transferred upon receipt of payment in consideration.  Usually all the vital terms of a contract will be stipulated previously, although many are implied in everyday situations, such as buying a newspaper or train ticket.  These terms would also be given practical effect by the court where it would be necessary to found a legal action, which is why they largely go unstipulated.  Additionally, the fact that very little litigation arises from these scenarios is another good reason for the lack of clarity necessary in small time contracts.  However, when it comes to more complex agreements, best practice dictates that writing is always essential to avoid problematic legal action.

Contract formation is critical, perhaps not so much on a small scale but almost certainly on a large scale with commercial property transactions and the like forming a fundamental part of commerce.  It is therefore pivotal that each jurisdiction develops its own considerations of precisely when a contract is made, in order to establish a pragmatic way to resolve disputes.  Naturally it is also important to maintain a cohesive structure to the law to ensure legal certainty, particularly in an area such as contract which is so vital to the success and growth of the economy, and which regulates such a large quantity of money.  By ensuing standard and structure, internally at least, it is possible to give the economy a fighting chance.  It is also in the best interests of everyone to harmonise laws with those of their trading partners, to ensure smoother transactions for the benefit of the economy on a wider scale.

Human Rights vs Civil Liberties in Europe

One of the most defining legal motions of the last hundred years on a worldwide scale is the European Convention on Human Rights, which imposed for the first time a codified standard of behaviour that all signatories must meet.  Although the document is referred to in a specifically European context, it is truly important throughout the world as a clear guideline for reference to matters on human rights.  But what about before the Convention - what were the protections for the citizen against encroachment from the authorities, and what recourse was there for grievances?  In this article we will look at the position of many European countries prior to the Convention and after, to highlight the change in legal position for the average citizen.

The European Convention of Human Rights codified a number of key human rights principles which were required to be satisfied by those that ratified it at law.  For monitoring the behaviour of the signatories, a European Court was established to hear grievances against member states, with the ability to air problems and effectively embarrass nations into compliance.  Since its inception, the court has been exceptionally successful in enforcing the provisions within the convention.  No one member state wants the embarrassment of a public trial, and therefore they bend over backwards to accommodate for the needs of the Convention.  Has it worked?  Well it has certainly massively overhauled the nature of private, criminal and public in almost every regard and this has lead to widespread disruption.  However, it looks almost undoubted that the European Convention on Human Rights is having a positive effect on the rights of the citizens across Europe, including in the wealthier nations.

Take the United Kingdom for example.  Prior to the European Convention on Human Rights, it was quite possible to detain a suspected criminal without judicial involvement - i.e. people could be deprived of their liberty almost indefinitely with no possible legal intervention.  This meant people didn't have to be told why they were being detained, and had no right to put forward a case to an impartial justice, reserved until the prosecutors decided to step in, and had enough evidence to do so.  For a country that boasts one of the world's strongest economies, and with a very high GDP, this is a shocking proposition, and one which has been remedied since the introduction in law of the European Convention.  The Convention has been loved and reviled in equal measures, and although it's had some tough challenges throughout its life span, it is slowly but surely changing the position for the citizen.  For the prospect European Union member state, it is an essential minimum, meaning those on the fringes of European recognition are striving with great result to meet the targets.  The larger, more developed nations are keeping on their toes and learning that they can't do as they please, and the European Court is making sure of that.  

Prior to the Convention, it was up to the people to rely on the provisions within their constitution for the protection of their rights, and this was very much a 'luck of the draw' scenario.  Some countries had excellent provisions, like Germany, where as others like the UK had abysmal records, mainly down to their lack of fundamental freedoms for the citizen.  Since the introduction and ratification of the Convention, these countries have all levelled upwards to create an environment that is ideal for the citizen, and aims to protect his rights whilst also protecting the interests of the state and the public at large.  The European Convention on Human Rights has certainly come along way, and it has brought the entirety of Europe, even those on the margins, together in a bid to improve living conditions and basic human rights for the ordinary citizen in the street.  As the decades come and go, only time will tell how effective it will end up, although from initial projections it is looking to have a positive impact for the people of Europe.

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