The law of contract

Introduction

The law of contract is ripe for feminist analysis. Despite increasing calls for the re conceptualisation of neo classical ways of thinking, feminist perspectives on contract tend to be marginalised in mainstream textbooks Linda Mulcahy and Sally Wheeler, Feminist Perspectives On Contract Law (Routledge Cavendish 2005). It is a long debate and talk of the town that what shape would contract law get if it is allowed to adopt the recommendations of feminist analysis. Absolutely, it would look different then it looks today because feminist have a total different view of things. They also oppose some major ideas and ideals set by patriarchal leadership who made the law and who is currently implementing it our the majority of population including woman.

“Sometimes parties to a contract agree on the wording of the contract, but disagree about its meaning”

Marija Karaniki? Miri?

The most basic and fundamental point that the feminist writers arise is making and implementing of contract law by the men and giving any representation or a minor one to the woman who constitutes more than half of the population of United States of America. The feminist legal theory is about the law the way it is and it is also about the law the way it could be. The feminist theory can really change the way these laws work and if we analyze contract law under the lens feminist legal theory.

Critical analysis

The feminist judgement project was one of its kind in which feminist writers attempted to interpret the cases of high importance and added the feminist perspective in them which formerly were ignored Feminist Judgments: An Introduction [2010] Feminist Judgments : From Theory to Practice. Feminist writers tried try the real world situation. instead just participating academic analysis and criticism on judicial judgements they choose a more practical dimension. They tried to produce the real world judgements or rather we can say they were more interested in practical aspects of feminism rather then just hovering over the theoretical one. The aim of the project was to explore more substantial grounds for the application of feminist point of view in practical judicial judgements in which they are ignored.

“American feminists have identified law as an instrument of male supremacy since their first national gathering at Seneca Falls, New York in 1848”

Judith A. Baer, Feminist Theory And The Law [2011] Oxford Handbooks Online.

It identifies masculine traits present contract theories in all three disciplines Alice Belcher, A Feminist Perspective On Contract Theories From Law And Economics (2000) 8 Feminist Legal Studies. There is a constant opposition for feminist view point in legal procedures. It is said that there is no connection between feminism and contract law and they are entirely two different things. But it is not true. There is certainly a connection. Feminist writers argues that contract law content uses “him” and “his” to refer to the person. Why they do not use “she” and “her”? Why is it so when we study dispute between two imaginary people A and B who do not have any particular names, identity or gender but they always refer to as male candidates. Why can not be they the female characters? Every time female contract law students study their course material, they surely ask this question that why they contact always speak to men or speak about men. Being the majority women also thinks that the use of “him” and “his” emphasis that contract law was made by men and for men and there is no contribution of women in whole process. They left behind and left in dark on everything throughout the history but it is not possible anymore. Because in this modern world women have their voice and they know how to speak. That is why, it is necessary to listen to women and their view point should be given weightage.

All these questions makes it highly important that there should be a female interpretation of contract law. As we know that female contributes the major portion of work force and they also occupy key positions in most of the firms then why there is no or very less representation of female in contract law studies and why the view point of feminist in the contract law decisions. It is important to consider that stake holders should sit together and solve this issue and give proper representation to the females and feminist view point in major sessions of contract law.

It tells us that there is a dire need to review contract law from feminist perspective. If men are  willing to keep women and particularly feminist away from rational discussion in case of contract law. The experience of the individuals should count because they can give rational solutions to many problems and besides that it is a hot topic that feminist perspective and view point can give solution of many problems that men and their patriarchal thinking can not because they think in a particular and more biased way. Human problems needs and demands appropriate solutions and we should use every possible mean available to deal with this issue. No matter if it is a feminist view point or any other ideology, as long as it has the potential to solve human problems, we should not hesitate to opt them as our legal system.

Feminist economics is a critical approach to mainstream neoliberal economics (Orit Gan), A Feminist Economic Perspective On Contract Law: Promissory Estoppel As An Example [2021] Michigan Journal of Gender & Law. The world is fed up of old economic system and economic values. It is a talk of the town that we need a new look and perspective regarding economy and economic system and feminist analysis of contract law can give us that opportunity to transform this world into a better place through law.

“An agreement enforceable by law is a contract.”

Baird Textile Holdings Ltd v Marks & Spencer Plc case

Baird textile was suppling raw material to Marks and Spencer Plc for thirty years. They have a long business relationship but this relationship was no legal basis. They were no contract signed between two parties and all the projects were signed on individual basis. Once a job is finished, the contract along with the job also comes to an end. Actually, it was the standard practice of Marks and Spencer Plc at the time that they were not signing any long term legal contract with any one. They want and prefer their relations with their supplier a little flexible and it can only be possible if they remain out of any legal system.

But in 1999, Marks and Spencer out of nowhere ended the supply arrangement with Baird. They said that the decision would be effective from the end of the current season. But Braid sued Marks and Spencer and argued that they were breaching a most basic and common understanding and they should prior notify us if they were going to ask us to stop suppling them the raw material. Apparently there case had not strong legal evidences because there were no legal contracts between two companies but Baird took the following position. There was an ongoing contract between the parties. This contract contained an implied term that reasonable notice was necessary to terminate the relationship. Terminating the contract without reasonable notice was therefore a breach of contract Baird Textile Holdings V Marks & Spencer Case Summary (IPSA LOQUITUR) <https://ipsaloquitur.com/contract law/cases/baird textile holdings v marks spencer/> accessed 24 June 2021. Marks and Spencer said that Baird terminated the contract without any prior notice and it was mandatory to give a reasonable notice before taking any such action.

The court gave decision in favor of Marks and Spencer. It was said that the contract by Baird was too uncertain. They were no objective way to determine the nature of the contract and the nature of agreement between parties and what terms they were agreed to business with each other. It was clear from this point that those companies did not want to have a legal relationship with each other and they were reluctant to sign. But still the court favored Marks and Spencer and asked Baird to compensate them with the money for the worth next three years of business between these two companies.

But if we apply feminist legal theory on this case, the outcome may change. We can apply feminist theory and see what happens in practical way. Through the lens of feminist theory we can see thin issue through objective lens. There is no need to always see cases like these to judge them subjectively. If we see the case through objective lens then the result may change. We know that there were no legal contract between Baird and marks and Spacer and court still favored Marks and Spencer. We also knows that it was the policy of Baird to have a flexible relationships with its partners and they do not want to sign any documents. It means they do not want to become obliged to any legal proceedings. They did so on purpose because it suited them and they probably were thinking to change the suppliers in the future and they also did so. If they wanted they had signed a contract but they did not. furthermore, court fined Baird but Baird can be saved from this fine because they were not bound by any contract and they had the right to end the contract whenever they want. Feminist theory would give Baird favor based on the realistic evens and evidence.

Royal Bank of Scotland plc v Etridge (No 2)

“Economic analysis of contract law is a highly influential theoretical approach to contract law”

Steve Hedley

Royal Bank of Scotland plc v Etridge (No 2) is a leading and important case in the history of contract law disputes. Basically, it was a dispute between bank and one of a woman who signed the contract but lost her house in the process. She was partner in the house and lost her part of the house.

The case scenario is that a husband took loan from Royal Bank of Scotland. He started business and eventually lost everything. He took loan and mortgage his house. Wife also signed the paper but when they lost everything in the process she claimed in the court that she was under pressure when she signed the papers. The court ordered he parties and case was set for hearing.

There were different scenarios in this case. It was not clear that if the woman was really under pressure when she signed the contract or she was just making up the case to save her part of the house. If she were under the pressure of her husband, then who is responsible? The bank of her husband who pressured her to sign the contract without her actual consent. The court took the legal position and said if clients are signing the contracts in joint scenarios like this one, then  banks should make sure that they are doing so without any pressure. They a legal prosecutor must ask for the consent of the client and tell the bank about it to escape from any future complications.

The feminist view point can be different on this case particularly regarding the judgement in which honorable Lords talked about that woman and the scenario in which she signed the contact. The feminist would claim that women remained under the pressure of the society and their families for the thousand of years and it is still happening in this modern world. If this woman was signing the contract then bank should ask her for her full consent and tell her the consequences as well if they fail to return and loan. But bank did not do so that penalty can be put on the bank and it can be asked to compensate the women because it was the fault of the bank that despite knowing that women are living under patriarchal society they did not took precautionary measures to make sure that these women were taking that big decision on their own without any pressure.

The other scenario can be that the husband should be fined because he made her wife signed the contract without her consent. It comes under domestic violence and mental torture that you made your spouse helpless and they become so frustrated that they do not see any way but to follow and obey your command. Husband should also be asked that why he made her wife sign the contract if she did not want to.

Conclusion

It is the need of the time to bring feminist legal theory into action because women are suffering in every part of the word. Wo matter if it is a modern society like American society or poorer and prejudicial societies like Indian societies, women are suffering everywhere. That is why, it is necessary see the missing the missing aspects of feminist writers in big legal issues and it can really help to settle most of the issues that are related to females in particular and public in general.

In the wake of the 2008 financial crisis and the increasing economic inequality which the pandemic has made glaringly obvious, there’s been a renewed interest in revisiting the traditional law and economics approach to contract law.  Given that contracts are the tools of capitalism, it makes sense that contracts scholars are rethinking approaches to contract law. 

Nancy Kim

References

All Answers ltd, Critically Examining the Contracts and Contracting Profess (Lawteacher.net, June 2021) <https://www.lawteacher.net/free law essays/contract law/critically examining the contracts and contracting profess contract law essay.php?vref=1> accessed 25 June 2021

Baer J, Feminist Theory And The Law [2011] Oxford Handbooks Online

Baird Textile Holdings V Marks & Spencer Case Summary (IPSA LOQUITUR) <https://ipsaloquitur.com/contract law/cases/baird textile holdings v marks spencer/> accessed 24 June 2021

Belcher A, A Feminist Perspective On Contract Theories From Law And Economics (2000) 8 Feminist Legal StudiesFeminist Judgments: An Introduction [2010] Feminist Judgments : From Theory to Practice

Feminist Judgments: An Introduction [2010] Feminist Judgments : From Theory to Practice

Gan O, A Feminist Economic Perspective On Contract Law: Promissory Estoppel As An Example [2021] Michigan Journal of Gender & Law

Hedley S, Orit Gan, ‘A Feminist Economic Perspective On Contract Law: Promissory Estoppel As An Example’ (Private Law Theory, 2020) <https://private law theory.org/?p=27593> accessed 25 June 2021

Joe Frug M, Rescuing Impossibility  Doctrine: A POSTMODERN FEMINIST ANALYSIS OF CONTRACT LAW

Kim N, Contractsprof Blog: Orit Gan On A Feminist Economic Perspective To Contract Law (Lawprofessors.typepad.com, 2020) <https://lawprofessors.typepad.com/contractsprof_blog/2020/12/orit gan on a feminist economic perspective to contract law.html> accessed 25 June 2021

Miri? M, A Critical Look At The Subjective And Objective Purposes Of Contract In Aharon Barak’S Theory Of Interpretation (2016) 9 Baltic Journal of Law & Politics

Mulcahy L, and Wheeler S, Feminist Perspectives On Contract Law (Routledge Cavendish 2005)