It has been observed that most of the contract laws are judge-made laws. Judges usually make and enforce these laws under the guidance of the common law and public policy. As a result, various loopholes have been encountered. This includes non-uniformity when enforcing the law because different judges make different laws depending on their understanding. Moreover, the ambiguity and non-clarity of some statute contract laws make the interpretation of the laws by judges difficult; thus judges enforce the laws by their understanding using public policy, contrary to the statute law. As stated by Smith and Atiyah (2006), law of contracts lays the rules that govern market transactions. Due to this, it is appropriate that contract laws should be made by the legislature and not the courts, to bring the aspect of clarity and uniformity, since legislators are mandated with the duty of making laws. The courts should only be allowed to interpret such laws when enforcing contract laws.
In this background, enforceable contracts are governed by rules. These rules make contracts legal because of the law, and if otherwise not adhered to the contract becomes unenforceable by the law. According to Macmillan and Stone (2012), in the aspect of law, a contract refers to an agreement between one or more parties that is legally binding. Legally binding in this context means that the law is capable of punishing the person making a promise in case of failure to fulfil the promise. For a contract to become legal or enforceable, certain rules must be fulfilled. These requisites include an offer, competent parties with the legal capacity to enter into a contract, acceptance, mutuality of agreement, the subject matter must be lawful, consideration, and writing in case the law requires so. Enforceability rules state that there must be an offer inform of a promise, which is a demonstration of willingness to enter into the contract and the offer should be accepted by the parties involved as a way of expressing an assent to the terms of the agreement.
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Similarly, the rule requires the parties to the contract to be competent with the legal capacity to contract. This makes the parties liable to an obligation under the contract. A contract with infants, intoxicated or mentally challenged persons is void and unenforceable by the law. The requisite of subject matter explains that subject of the contract must be within the law. Contracts of illegal objective or provides for crime commission are void and unenforceable. Furthermore, there must be an agreement between parties to confirm that they concur concerning the terms of the contract, and as such if any mutual agreement is not met, the contract becomes void and enforceable by the law. Besides, consideration in the form of a promise or act is required for enforceable contracts. Love, affection or the promise of gifts are not legible forms of consideration and makes a contract unenforceable. Besides, some contracts require being made in writing to make them enforceable by the law. All these rules must be applied by the legislature when making contracts and clarification should be made where necessary, to understanding and interpretation easier as well as minimizing the use of public policy by courts to enforce contracts.
According to Ghodoosi (2015), the reasons for public policy applied by common-law courts when enforcing contracts include; the public interest which views an individual arrangement and public arrangement as equal. Thus, the courts try to make a balance between them when enforcing contracts, the public morality, which tries to safeguard the connection and mutual identities between citizens to maintain and shape societal life, and the public security which aims to protect residents from outside threats deemed to endanger their lives. I reject some public policy because they lower the enforceability of some contracts which would otherwise be enforceable under the law, just to protect the public interest. Therefore, the legislature should take the role of making contract laws that will apply to all the courts when enforcing contracts.
References
Ghodoosi, F. (2015). The Concept of Public Policy in Law: Revisiting the Role of the Public Policy Doctrine in the Enforcement of Private Legal Arrangements. Neb. L. Rev ., 94, 685.
MacMillan, C., & Stone, R. (2012). Elements of the law of contract. University of London, The External Programme.
Smith, S. A., & Atiyah, P. S. (2006). Atiyah's Introduction to the Law of Contract . OUP Oxford.
