English law professor Patrick Atiyah argues that the idea that contracts could be based on consent was almost entirely absent in legal circles before 1770.
[citation needed] A status system establishes obligations and relationships by birth, but a contract presumes that the individuals are free and equal.
Modern libertarianism, such as that advanced by Robert Nozick, sees freedom of contract as the expression of the independent decisions of separate individuals pursuing their own interests under a "minimal state.
[2] In 1902, a New York baker named Joseph Lochner was fined for violating a state law limiting the number of hours his employees could work.
In 1905, the Supreme Court used the due process clause to declare unconstitutional the New York state statute imposing a limit on hours of work.
Rufus Wheeler Peckham wrote for the majority: "Under that provision no state shall deprive any person of life, liberty, or property without due process of law.
Pound argued the courts' rulings were "simply wrong" from the standpoint of common law and "even from that of a sane individualism" (482).
Pound lamented that the legacy of such "academic" and "artificial" judicial rulings for liberty of contract engendered a "lost respect for the courts" but predicted a "bright" future for labor legislation (486–487).
[4] The Supreme Court applied the liberty of contract doctrine sporadically over the next three decades but generally upheld reformist legislation as being within the states' police power.
In the late 19th century, the English judiciary espoused "freedom of contract" as a generally applicable feature of public policy, best expressed in Printing and Numerical Registering Co v Sampson[5] by Sir George Jessel MR.
In George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd, Lord Denning MR compared "freedom of contract" with oppression of the weak, as he outlined the development the law had undergone.
41 (in which there was exemption from liability, not on the ticket, but only in small print at the back of the timetable, and the company were held not liable) and L'Estrange v. F. Graucob Ltd. [1934] 2 K.B.
If a shipowner delivered goods to a person without production of the bill of lading, he could not escape responsibility by reference to an exemption clause.
This is illustrated by these cases in the House of Lords: Glynn v. Margetson & Co. [1893] A.C. 351; London and North Western Railway Co. v. Neilson [1922] 2 A.C. 263; Cunard Steamship Co. Ltd. v. Buerger [1927] A.C. 1; and by Canada Steamship Lines Ltd v The King [1952] A.C. 192 and Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd. [1959] A.C. 576 in the Privy Council; and innumerable cases in the Court of Appeal, culminating in Levison v. Patent Steam Carpet Cleaning Co. Ltd. [1978] Q.B.
This law ensures a balance between the freedom of parties to negotiate and enter into contracts, and the protection of consumers from unfair or deceptive practices.
Initially, this principle was heavily influenced by English common law, emphasizing the importance of autonomy and mutual agreement in contract formation.
Over the years, the Australian legal system has refined and adapted these concepts to address local needs and circumstances, particularly focusing on consumer protection and fair trading practices.
This evolution reflects Australia's commitment to balancing individual freedoms in contract negotiations with the protection of societal interests, especially in terms of consumer rights and equitable dealings.