Autonomy and Institutionalism in the Law of Contract

Abstract

This article considers the extent to which the law of contract is dictated by promise, agreement or intention rather than prevailing norms and standards. It argues that, over the last century, contract law has developed along two different lines. Through statute, policy objectives have been increasingly implemented in contract, in particular, with respect to consumer protection. By contrast, judge-made law has developed, particularly in the commercial context, so as to place greater emphasis on giving effect to what parties promise, agree or intend. This article analyses these changes through an empirical investigation of the law as it has developed in practice. It shows that contract law involves a balance between autonomy and institutionalism; it demonstrates that, beyond consumer protection under statute, contract has shifted in favour of party autonomy.