‘English law is based on an objective theory of contract. The commercial advantage of this approach is that it promotes certainty and predictability in the resolution of contractual disputes. Also as a matter of principle, it is not unfair to impute to the parties to a contract or a potential contact an intention that in the event of a dispute a neutral judge should decide the case applying an objective standard of reasonableness.’
Discuss whether an objective approach is satisfactory and the extent to which English law is committed to that approach in relation to the finding of offer and acceptance.
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As societies have advanced, trade has become an essential element ...view middle of the document...
As a result of such changes, the legal foundations underpinning the topic of contract law has therefore been based upon a traditional view. In the legal system it is apparent that there are two key views upon law; the objective view also known as the traditional view, concerned with the action of a party; and the subjective approach, also known as the modern view, first suggested by Lord Denning and is concerned with the intentions of the parties involved. Legal commentators are undecided in which approach offers universally the greatest use however; authorities do appear to be agreed upon the theory that the dichotomy between the two approaches does not mean that if each approach was used in a case that a different judgement would be reached.
Although, it does appear that the objective viewpoint concerning legal issues is usually favoured as it is ‘ideal to make the laws of man... firm, stable impersonal absolutes.’ with other views that an objective approach is currently the most suitable and best way to proceed which would also be supported by the view from Ayn Rand that an objective approach is required to function as a society as ‘it is not the known that breaks men’s spirit, but the unpredictable.’
If through the use of an objective legal standing we are able to reduce the uncertainty and promote predictability of resolutions to contractual disputes then it is hard to argue against the success of using this method. By promoting certainty and predictability an objective use of the law would also further aid the legal profession as every judge would be able to impartially apply the law in every court as well as reducing the potential number of disputes as parties would be clear upon what expectations are placed upon them when negotiating an agreement. This in turn would reduce costs as legal fees may not be needed as confusion would all ready have been avoided, as well as speeding up the legal proceeding for those cases in which dispute before a court was necessary.
It is therefore to avoid such conflicts that the law of contract has been based on an objective theory. This ‘traditional’ approach can be further separated into three components; promisee objectivity, in which the court takes the view of a reasonable person in the position of the promisee; promisor objectivity, in which the view of the promisor is used and detached objectivity, which adopts a middle ground taking into account the position of both the promisee and the promisor. This final approach is most commonly as it appears to be most successful in avoiding bias and also allows a greater flexibility in reaching a decision. However, due to this, some commentators argue that in fact this test may be subjective as it still relies on a judge’s opinion and personal perception of an individual case in an individual circumstance. This concept may at first seem to contravene the idea of employing and developing an objective law. However, this is not necessarily...