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‘Will Theory’ was supposedly the objective on which the English Contract Law was based on.Parties associated with the contract made agreements as per their own terms and will.A ‘doctrine of unconscionability’ is capable of solving this dilemma.
The Unfair Terms in Consumer Contracts Regulations, in 1999are inclusive of English law.
The definition of ‘Unfairness’ is based on the regulation of 5(1) Consumer Contracts Regulations – 1999/2083 – unfair terms referring to the fact, whether it causes a significant amount of imbalance in the obligations and rights of the parties arising because of the contract – contrarily to the need of good faith – and with the English courts’ interpretation.
Thus, some signs do direct to a new and refined interpretation of ‘freedom of contract’ by Europe. Mistake The principle behind ‘mutual mistakes’ – in contrast to the ‘acceptance and offer mistakes’ – is one that states it will “no longer be just or fair to hold the parties on the basis of their agreement”.
This is because the contract fundamentally is rendered by mistakes in a different manner.
Therefore, the contract law’s purpose was to setup the legalized framework for making these types of agreements certain, as well as, possible.
As a result, the ‘Freedom of Contract’, along with ‘Sanctity of Contract’ doctrines are fixed at the core of the objective – ‘Will Theory’.
German courts – in contrast to the criticized British development – adopted the doctrine of ‘unconscionability’ for the whole contract law basing within the common law approach, because of the changes in business customs, Unfair Terms in Consumer Contracts Regulations’ adoption and the direct horizontal effect of human rights’ ever growing importance.
The interpretation of ‘Freedom of contract’ often has been made with ‘Legal transaction contrary to public policy’s’ general clauses in ‘Performance in good faith’ and in the light of ‘Freedom of action’ based in Art.
The ‘fundamental difference test’, according to the establishment made in Bell v Lever, caused problems in the adaptation of the test that to the facts of the particular case.
Philips further argues that a ‘test of unconscionability’ can solve the confusion present in the concept of ‘fundamental difference test’, as well as, bring in line the ‘doctrine of mutual mistake’ with other relevant doctrines.