5 - Contracts through the Gaps

Summary

This chapter considers the disadvantages arising from the reduced capacity of the common law to serve as a general regulator of contracts. Four areas of ordinary (non-commercial) contracting activity are examined: consumer debt management, payday lending, student loans and non-disclosure agreements. Judicial engagement with these areas of contract has been minimal or non-existent. The examples show how little influence some common problems in consumer contracting, or other contracts involving inequality of bargaining power, have had on the development of contract law rules. The law’s lack of exposure to some common issues generated by its rules only serves to compound the hold that commercial contracting has over legal development. The dearth of legal engagement with these issues also closes off an important forum for the debate, development and communication of contract’s deeper normative values, including the general standards of conduct that are, or should be, inherent in contracting. This accelerates the process of common law impoverishment.