UNIVERSITY OF THE PUNJAB

JHELUM CAMPUS

Topic Law of Contract Modern Vs Legal Sense

Submitted by Sawera kalsoom

Roll No B.com.F-18-A-87(B)
Class B.com (Hons) 7th semester
Subject Corporate law

Submitted to
Assistant professor
Mr. Faraz Ashraf Khan
Table of Contents
INTRODUCTION.....................................................................................................................................3
Common law......................................................................................................................................5
Civil law..................................................................................................................................................5
ELEMENTS OF A CONTRACT.............................................................................................................6
 Offer................................................................................................................................................6
 Acceptance......................................................................................................................................6
 Consideration...................................................................................................................................6
 Legality............................................................................................................................................6
VOID OR VOIDABLE CONTRACT..................................................................................................8
MODERN APPROACHES.......................................................................................................................9
MODERN APPROACHES IN CONTRACT LAW...........................................................................9
Modern tendencies...............................................................................................................................10
LEGAL SENSE.......................................................................................................................................11
Conculsion………………………………………………………………………………………………………………………………………….12
References................................................................................................................................................12
ABSTRACT

A contract is a legally enforceable agreement between two or more parties where each assumes a legal
obligation that must be completed. Many aspects of daily life involve contracts, including buying
property, applying for a car loan, signing employment-related paperwork, and agreeing to terms and
conditions when buying products and services or using computer software. Legal issues involving
contracts arise most often when one party fails to perform the legal obligation it has agreed to do. When a
party breaches a contract by failing to perform, the Parties who misunderstand the terms of their
agreement may sue each other and have a court An agreement between two or more parties that creates in
each party a duty to do or not do something, Although all legal systems try to achieve a reasonable
approach to freedom of contract, there are bound to be contractual obligations that depart in some degree
from the ideal.

INTRODUCTION
The basic purpose of contract law is to provide a framework within which individuals can freely contract.
The contract can legally bind the contracting parties by the creation of laws which are applicable only to
the very individuals that create the contract and its subsequent legally binding laws. English contract law
has developed through the ages as a common law which is very heavily based on precedent. Arguably, the
pioneers of the common law system must have opted for such a means of dispute resolution, because it is
much more amiable and flexible than having a set of codified rules. Yet, this has placed the English
common law in quite a detrimental predicament as United Kingdom finds itself surrounded by civil law
practicing states in the European Union. Harmonization is proving to be more conciliation of legal
sovereignty for the common law system than the civil law system. Contracts are in every aspect of our
everyday lives. When you rent a home, you have to abide by the terms of a lease. If you have a mortgage
on your home, you essentially have a contract with your bank to pay back the money they lent you. When
you go to work, the terms and conditions of your employment are likely outlined in a written employment
contract. You are under a contract whenever you use your mobile phone or queue up your favorite show
on your television subscription service. By the end of today, you will probably enter into some more
contracts. Did you buy a coffee in the morning or grab some groceries? Work out at a gym? How about
open up your web browser to read the news? Have you done some online shopping? All of these activities
are governed by contracts. The main source of law that applies to contracts is common law (judge-made
law). The general rules on agreements and contract theory comes from the decisions of judges in past
contract dispute cases, many of which come from England. While our body of knowledge in contract law
in Canada has its roots in English case law, it has evolved over the years in the Canadian courts to suit our
circumstances. In Canada, the Supreme Court of Canada has the ultimate authority in making binding
decisions that Canadian courts must follow in contract dispute cases. Offer - One of the parties made a
promise to do or refrain from Consider. Acceptance may be expressed through words, deeds or
performance as called for in the contract. Generally, the acceptance must mirror the terms of the offer. If
not, the acceptance is viewed as a rejection and counteroffer. If the contract involves a sale of goods (i.e.
items that are movable) between The contracting parties had “a meeting of the minds” regarding the
agreement. This means the parties understood and agreed to the basic substance and terms of the contract.

LAW OF CONTRACT

Contract, in the simplest definition, a promise enforceable by law. The promise may be to do something
or to refrain from doing something. The making of a contract requires the mutual assent of two or more
persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep
the promise, the other is entitled to legal redress. The law of contracts considers such questions as
whether a contract exists, what the meaning of it is, whether a contract has been broken, and what
compensation is due the injured party (von, 2021).

HISTORY OF CONTRACT
Contract law is the product of a business civilization. It will not be found, in any significant degree, in
noncommercial societies. Most primitive societies have other ways of enforcing the commitments of
individuals; for example, through ties of kind ship or by the authority of religion. In an economy based
on barter, most transactions are self-enforcing because the transaction is complete on both sides at the
same moment. Problems may arise if the goods exchanged are later found to be defective, but these
problems will be handled through property law with its penalties for taking or spoiling the property of
another rather than through contract law. Even when transactions do not take the form of barter,
noncommercial societies continue to work with notions of property rather than of promise. In early forms
of credit transactions, kinship ties secured the debt, as when a tribe or a community gave hostages until
the debt was paid. Other forms of security took the form of pledging land or pawning an individual into
“debt slavery.” Some credit arrangements were essentially self-enforcing: livestock, for example, might
be entrusted to caretakers who received for their services a fixed percentage of the offspring. In other
cases constructing a hut, clearing a field, or building a boat enforcement of the promise to pay was more
difficult but still was based on concepts of property. In other words, the claim for payment was based not
on the existence of a bargain or promise but on the unjust detention of another’s money or goods. When
workers sought to obtain their wages, the tendency was to argue in terms of their right to the product of
their labor. A true law of contracts that is, of enforceable promises implies the development of
a market economy. Where a commitment’s value is not seen to vary with time, ideas of property and
injury are adequate and there will be no enforcement of an agreement if neither party has performed,
since in property terms no wrong has been done. In a market economy, on the other hand, a person may
seek a commitment today to guard against a change in value tomorrow; the person obtaining such a
commitment feels harmed by a failure to honor it to the extent that the market value differs from the
agreed price (von, 2021).

Common law
From perhaps the 13th century on, English common law dealt with contractual problems primarily
through two actions: debt and covenant. When a fixed sum of money was owed, under an express or
implied agreement, for a thing or a benefit given, the money was recoverable through a simple action at
debt. Other debt action was available for breach of a promise, made in an instrument with a seal, to pay a
fixed sum of money. A so-called action at covenant could also be brought, but only for breach of a
promise under seal. These actions did not, however, provide a remedy for the breach of an informal
agreement to do something. In the 15th century the common-law courts started to develop a form of
action that would render such agreements enforceable, and by the middle of the 16th century they had
done so through the form of action known as assumpsit (Latin: “he has undertaken”). Originating as a
form of recovery for the negligent performance of an undertaking, it came step by step to cover the many
kinds of agreement called for by expanding commerce and technology. Having established in principle
a comprehensive remedy, it was necessary for the courts to limit its scope. The courts found the limiting
principle in the doctrine of “consideration,” according to which a promise as a general rule is not binding
unless something is given or promised in exchange. This consideration need not be
of commensurate value, but it must be of some value, must be bargained for, and cannot be simply a
formality (A.W.B. Simpson, 1987).
Civil law
On the Continent, the revived study of classical Roman law had an immense influence upon the
developing law of contract. It stimulated the rediscovery or construction of a general law concerning the
validity of agreements. The Roman law, however, as crystallized in Justinian’s law books, tended to
confirm the notion that something more than an informal expression of agreement was required if a
contract was to be upheld by a court. Another significant influence in the development of contract law on
the Continent was the Roman Catholic Church. The church in its own law (canon law) strongly supported
the proposition that a simple, informal promise should be binding (pacta sunt servanda). This attitude was
to encourage the development of informal, contract was approached essentially in terms of agreement;
obligations freely assumed were enforceable except when the welfare of society or the need to protect
certain categories of persons, such as minors, dictated otherwise. With the generalization that contract
rests ultimately on agreement, the civil-law systems achieved a foundation quite different from the
common law’s view that contract is basically a promise supported by a consideration. All the Western
systems of modern contract law provide mechanisms through which individuals can voluntarily assume,
vis-à-vis others, legally binding obligations enforceable by the other person. Contract law strives to give
legal expression to the endlessly varying desires and purposes that human beings seek to express and
forward by assuming legal obligations. The resulting system is open-ended; in principle, no limits are set
in modern contract law to the number of possible variations of contracts (civil law, 1989).

ELEMENTS OF A CONTRACT

To be valid, a contract must generally contain all of the following elements:

 Offer

 Acceptance

 Consideration

 Legality

Contracts always start with an offer. An offer is an expression of a willingness to enter into a contract on
certain terms. It is important to establish what is and is not an offer. Offers must be firm, not ambiguous,
or vague. A person who is making the offer is called the offer or. Offers are different than an invitation to
treat. An invitation to treat is not an offer. When you list your home for sale, you are not making an offer;
you are making an offer to treat. You are inviting potential buyers to make an offer to you to buy your
home. The same is true with most advertising. The stores are making an offer to treat. They are
expressing their willingness to sell you something if you offer them their asking price. However, they are
not bound to accept your offer. For example, you place an ad online to sell your automobile for a certain
price. Someone makes an offer to buy the automobile from you at full price (Rousseau, 1993).
Acceptance by the offered (the person accepting an offer) is the unconditional agreement to all the terms
of the offer. There must be what is called a “meeting of the minds” between the parties of the contract.
This means both parties to the contract understand what offer is being accepted. The acceptance must be
absolute without any deviation, in other words, an acceptance in the “mirror image” of the offer. The
acceptance must be communicated to the person making the offer. Silence does not equal acceptance.
Consideration is the act of each party exchanging something of value to their detriment. . A see’s B’s
lawn needs to be cut so A voluntarily does so. B comes home from work and is so pleased that B gives a
$30 for cutting the lawn. The following week A cuts B’s lawn again without B asking A to do so. A now
asks B for $30 for cutting the lawn and B refuses to do so. A claims they have a contract since A has
provided consideration by mowing B’s lawn, even though it was voluntary. A is incorrect. B is not
obligated to provide consideration to A. There is no contract. However, if B had asked A to mow the
lawn, but did not set the price, A would probably be able to enforce the contract after mowing the lawn
because B requested he do so (Morawetz, 1987). If a person has a duty to do something, such as a public
servant, the performance of the duty is not consideration. The fourth required element of a valid contract
is legality. The basic rule is that courts will not enforce an illegal bargain. Contracts are only enforceable
when they are made with the intention that they legal, and that the parties intend to legally bind
themselves to their agreement. An agreement between family members to go out to dinner with one
member covering the check is legal but is not likely made with the intent to be a legally binding
agreement. Just as a contract to buy illegal drugs from a drug dealer is made with all the parties knowing
that what they are doing is against the law and therefore not a contract that is enforceable in court.  The
capacity to enter into a contract may be compromised by mental illness or intellectual deficiency. Issues
of dementia and Alzheimer’s can blur the lines of competency to sign a contract. Competency to enter
into a contract requires more than a transient surge of lucidity. It requires the ability to understand not
only the nature and quality of the transaction, but an understanding of its significance and consequences.
If a person is found to lack the mental capacity to enter into a contract, then the contract is not
automatically void but it is voidable. Minors under the age of 18-years-old are allowed to sign contracts,
but they are voidable at the minor’s election. The exception to this rule is that contracts for necessities are
not voidable. Necessities are general goods or services necessary for subsistence, health, comfort, or
education. Minors can affirm their contract made while a minor formally or by actions upon reaching the
age of 18. As already mentioned above, not all contracts have to be in a written format. However, some
absolutely do, or they are voidable. Under the common law doctrine of the “Statute of Frauds,” which has
been codified in the General Obligations Law (GOB), contracts. For example, B offers to buy A’s
automobile for a specific price and A accepts the offer and agrees to give B the automobile upon receipt
of those specific funds. Both parties are agreeing to the contractual arrangement. It is bilateral. In a
unilateral contract, one party is making an offer and promise if someone does something in return. There
is no agreement necessarily between two individuals as there is in a bilateral contract. However, an offer
is made and if another individual accepts the offer and performs, an enforceable contract exists. An
example would be if A offers a reward of $100 to the person who finds and returns A’s missing cat. If B
finds and returns the cat to A, A would be bound to pay B the $100 reward. This is a unilateral contract.
All agreements are contracts if they are made by the free consent of parties competent to contract, for a
lawful consideration and with a lawful object, and are not hereby expressly declared to be void
(Kronman, A. T. (1985). Contract law and the state of nature. Journal of Law, Economics, & Organization,
1(1), 5-32., 1985)

Nothing herein contained shall affect any law in force in Bangladesh, and not hereby expressly repealed,
by which any contract is required to be made in writing or in the presence of witnesses, or any law
relating to the registration of documents. Who are competent to contract 11? Every person is competent to
contract who is of the age of majority according to the law to which he is subject, and who is of sound
mind, and is not disqualified from contracting by any law to which he is subject (Jon Faine, 2021).
VOID OR VOIDABLE CONTRACT
The terms “void” and “voidable” are often confused for each other, or used interchangeably. Although
these two types of contract seem similar, they are quite different. A contract that is considered to be void
cannot be enforced by either party. The contract has been rendered unenforceable. Under law, void
contracts are treated as if they had never been formed. An example of when a contract will be considered
void would be if the contract requires one party to perform an act that is impossible, or illegal. Such
contracts would be considered “void on its face.” Void contracts are unenforceable by law, and are
invalid. Some examples of void contracts include: Contracts involving an illegal subject matter, such as
drug dealing, illegal gambling, or committing a crime; Contracts which are entered into by someone not
mentally competent, such as those with mental illness, or minors; Contracts that require an impossible
performance, or the performance is dependent on an impossible event happening; Contracts that are
against public policy, such as when they are too unfair; and Contracts that restrain certain activities, such
as the right to choose who to marry, restraining legal proceedings, and the right to work to earn a living.
(Turner, 2013)

BREACH OF CONTRACT

A contract case usually comes before a judge because one or both parties claim that the contract was
breached. A breach of contract is a failure, without legal excuse, to perform any promise that forms all or
part of the contract. This includes failure to perform in a manner that meets the standards of the industry
or the requirements of any express warranty or implied warranty, including the implied warranty of
merchantability. A breach of contract can be material or minor. The parties’ obligations and remedies
depend on which type of breach occurred. A breach is material if, as a result of the breaching party’s
failure to perform some aspect of the contract, the other party receives something substantially different
from what the contract specified. For example, if the contract specifies the sale of a box of tennis balls
and the buyer receives a box of footballs, the breach is material. When a breach is material, the
nonbreaking party is no longer required to perform under the contract and has the immediate right to all
remedies for breach of the entire contract.

Factors that the courts consider in determining materiality include:

1. The amount of benefit received by the no breaching party; 

2. Whether the no breaching party can be adequately compensated for the damages;
3. The extent of performance by the breaching party; 
4. Hardship to the breaching party; 
5. Negligent or willful behavior of the breaching party; and
6. The likelihood that the breaching party will perform the remainder of the contract.
A breach is minor if, even though the breaching party failed to perform some aspect of the contract, the
other party still receives the item or service specified in the contract. For example, unless the contract
specifically provides that “time is of the essence” (i.e. deadlines are firm) or gives a specific delivery date
of goods, a reasonable delay by one of the parties may be considered only a minor breach of the contract.
When a breach is minor, the no breaching party is still required to perform under the contract, but may
recover damages resulting from the breach. For example, when a seller’s delay in delivering goods is a
minor breach of contract, the buyer must still pay for the goods but may recover any damages caused by
the delay. (Silverman, 2021)

MODERN APPROACHES

The ‘modern approach’ to interpretation requires that effect be given to the ordinary meaning of a
statutory text in its wider context and with reference to its purpose. This article interrogates the
interpretive approach used by the High Court in fundamental rights cases to assess its compatibility with
this ‘modern approach’. It asks, specifically, whether the strict text-based approach used in these cases
(which involves the application of the principle of legality) is sufficient to determine the meaning of
ambiguous statutory texts. The argument made is that the coherent application of the ‘modern approach’
requires that this interpretive approach be justified. (LAW SOCIETY JOURNAL, 2011)
Contract is probably the most familiar legal concept in our society because it is so central to the essence
of our political, economic, and social life. In common parlance, contract is used interchangeably
with agreement, bargain, undertaking, or deal. Whatever the word, the concept it embodies is our notion
of freedom to pursue our own lives together with others. Contract is central because it is the means by
which a free society orders what would otherwise be a jostling, frenetic anarchy. So commonplace is the
concept of contract and our freedom to make contracts with each other that it is difficult to imagine a time
when contracts were rare, when people’s everyday associations with one another were not freely
determined. Yet in historical terms, it was not so long ago that contracts were rare, entered into if at all by
very few: that affairs should be ordered based on mutual assent was mostly unknown.  This movement
was not accidental it developed with the emerging industrial order. From the fifteenth to the nineteenth
century, England evolved into a booming mercantile economy, with flourishing trade, growing cities, an
expanding monetary system, the commercialization of agriculture, and mushrooming manufacturing.
With this evolution, contract law was created of necessity. Contract law did not develop according to a
conscious plan, however. It was a response to changing conditions, and the judges who created it
frequently resisted, preferring the imagined quieter pastoral life of their forefathers. Not until the
nineteenth century, in both the United States and England, did a full-fledged law of contracts arise
together with, and help create, modern capitalism. In modern legal systems, individuals are entitled to
raise defenses during their trials to show that they were not fully responsible for their criminal conduct.
The criminal justice system permits the use of defenses to ensure that the accused receives condign
punishment, or proportional justice (Rakoff, 1982)

Modern capitalism, indeed, would not be possible without contract law. So it is that in planned
economies, like those of the former Soviet Union and China, the contract did not determine the nature of
an economic transaction. That transaction was first set forth by the state’s planning authorities; only
thereafter were the predetermined provisions set down in a written contract. Modern capitalism has
demanded new contract regimes in Russia and China; the latter adopted its Revised Contract Law
in .Contract law may be viewed economically as well as culturally. In An Economic Analysis of Law,
Judge Richard A. Posner (a former University of Chicago law professor) suggests that contract law
performs three significant economic functions. Third, the law of contracts alerts the parties to troubles
that have arisen in the past, thus making it easier to plan the transactions more intelligently and avoid
potential pitfalls. (Posner, 2010)

 the parties’ intention must be taken into account when implying a term into the contract;

 A term can only be implied if it is necessary to give business efficacy to the contract;
  A term will only be implied if it is so obvious that it goes without saying.

i. It must be reasonable and equitable;

ii. It must be necessary to give business efficacy to the contract;

iii. It must be so obvious that “it goes without saying”;

iv. It must be capable of clear expression;

v. It must not contradict any express term of the contract.

The implication of a term was not critically dependent on proof of an actual intention of the parties
when negotiating the contract. A term should not be implied into a detailed commercial contract
merely because it appears fair or merely because one considers that the parties would have agreed it if
it had been suggested to them. A requirement that a term is reasonable and equitable will usually, if
ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be
reasonable and equitable. (Fegbeutel, 2016)

Modern tendencies
Arbitration
Modern commercial practice relies to a growing extent on arbitration to handle disputes, especially
those that arise in international transactions. There are several reasons for the growing use of
arbitration. The procedure is simple, it is more expeditious, and it may be less expensive than
traditional litigation. The arbitrators are frequently selected by a trade association or business group for
their expert understanding of the issues in the dispute. The proceedings are private, which is advantageous
when the case involves trade or business secrets. In many legal systems, the parties can authorize
arbitrators to base their decision on equitable considerations that the law excludes. Finally, when the
parties are from different countries, an international panel of arbitrators may offer a greater guarantee of
impartiality than would a national court. (.Horwitz, 1974)
Codification
Trade and commerce flow increasingly across national and state boundaries. In response to this there have
been many efforts to unify the traditional legal systems. In the United States, the Uniform Commercial
Code has replaced earlier uniform statutes such as the Sales Act and the Negotiable Instruments Law; by
1990 it had been adopted by every state. Internationally, the decade of the 1960s saw significant progress
toward uniform regulation of the law of sales. The creation of a uniform body of substantive rules is, of
course, easiest when the communities involved have roughly similar rules and principles. In addition, the
greater the volume of multistate transactions, the greater the pressure for uniform regulation. It is
understandably easier to achieve a Uniform Commercial Code within the United States than to create
such a system internationally (.Horwitz, 1974).
LEGAL SENSE

Legal tradition’ is a term frequently used in legal history and comparative law. The increasing interest in
global perspectives on law and history, the dialectics inherent in globalization as such, as well as some
tendencies of ‘de-’ and ‘re-tradionalisation’, often enhanced by law, have made legal traditions even more
topical. legal history and comparative law, like JH Merry man and Harold J Berman, with special
emphasis on the work of Canadian comparative law scholar HP Glenn. Beyond its grounding in
contemporary information theory and evidence of an impressive command of legal-historical scholarship,
his concept of legal tradition as normative information bears analytical potential for legal historians and
should be read as an invitation to dialogue between comparative law and comparative legal history.
The context of an epistemological revolution that subverts traditional juridical science, and that places
“feeling” at the center of the reflection on the homo juridical, Aesthetics opens a path to a more complex
elaboration of sense that guides human behavior. The general goal of this article is to contribute to the
development of an Aesthetics of Law that uses Law and Humanities as a methodology addressed
primarily to jurists to experience sense. More specifically, my first aim is to clarify the concepts of sense
and form that interest us, by holding together both the rational qualities and the affective and sensory
feelings of human intelligence that influence the experience of living. Moreover, I intend to highlight the
link between Ethics and Aesthetics and between feeling and law, to approach legal norm as an aesthetic
object, as a form open to the quest for sense, where the quest for sense is a search for justice and the
common good. Finally, I propose an exercise of Law and Humanities, imagining two encounters
experienced in front of the Annunciation by Beato Angelico and the Annunciation of Mary by Rainer
Maria Rilke, respectively, to show how jurists can cultivate their sensibilities through contact with
artworks. (T.D.Harv, 1982)

The legal concept of evidence is neither static nor universal. Medieval understandings of evidence in the
age of trial by ordeal would be quite alien to modern sensibilities (Ho 2003–2004) and there is no
approach to evidence and proof that is shared by all legal systems of the world today. Even within
Western legal traditions, there are significant differences between Anglo-American law and Continental
European law (see Damask 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of
evidence that operates in the legal tradition to which Anglo-American law belongs it concentrates on
evidence in relation to the proof of factual claims in law. It may seem obvious that there must be
a legal concept of evidence that is distinguishable from the ordinary concept of evidence. After all, there
are in law many special rules on what can or cannot be introduced as evidence in court, on how evidence
is to be presented and the uses to which it may be put, on the strength or sufficiency of evidence needed
to establish proof and so forth. But the law remains silent on some crucial matters. In resolving the factual
disputes before the court, the jury or, at a bench trial, the judge has to rely on extra-legal principles. There
have been academic attempts at systematic analysis of the operation of these principles in legal fact-
finding (Wilmore 1937; Anderson, Schum, and Twining 2009). These principles, so it is claimed, are of a
general nature. On the basis that the logic in “drawing inferences from evidence to test hypotheses and
justify conclusions” is governed by the same principles across different disciplines (Twining and
Hampshire-Monk 2003: 4).

References

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http://www.lexology.com/library/detail.aspx?g=cb451703.

Jon Faine, F. p. (2021). ELEMENTS OF CONTRACT.

Jose M.Romero, T. A. (2021, November 14). merriam-webster.com. Retrieved November 21, 2021, from
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