Freedom Of Agreement

The General Court recognized that a legitimate remedy in the event of an infringement should not be financial compensation, which may be reflected in the agreement between the parties. It may also maintain a clause protecting legitimate commercial interests, notwithstanding the fact that the infringement against the innocent party cannot result in an equivalent financial loss. For example, a hefty parking penalty for exceeding a time limit was justified because it discouraged long-term parking, kept traffic flowing smoothly, and generated revenue for parking.14 There are some ways in which the Common Law creates barriers to full contractual freedom, in order to protect parties from bad business, in particular where there is an asymmetrical relationship between the parties. as an employer-employee or business-consumer relationship. In light of the Supreme Court`s decision, it is clear that clauses that limit the ability of parties to vary their agreement are now becoming more important than previously thought. To the extent that the objectives of these clauses include control and security, the decision probably means that contracts are less likely to be changed «by chance»: to the extent that formalities must be complied with, in-house lawyers or managers may be consoled by the fact that they should be able, at least in theory, to exercise greater control over possible derogations. Faced with this abuse of power – by the strong against the weak – by the use of the fine print of conditions – the judges did what they could to contain it. They still had the idol in front of them, «contractual freedom.» They still knelt and worshipped, but they hid a secret weapon under their coats. They used it to stab the idol in the back. This weapon has been called «the true construction of the treaty». They used it with great skill and ingenuity. They used it to deviate from the natural meaning of the words of the exception clause and impose on them a tense and unnatural construction. On a case-by-case basis, they said that the words were not strong enough to hold the large group accountable; or that, in the present circumstances, the large group has not been able to invoke the opt-out clause.

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