This paper examines the influence of fundamental rights on English contract law since the enactment of the Human Rights Act 1998. Its aims are two-fold – to provide a first comprehensive analysis of this phenomenon in English law and to tease out the factors which have shaped its contours. The paper accordingly explores each of the various routes by which fundamental rights may touch on English contract law: direct statutory horizontality, public liability horizontality, remedial horizontality, and substantive horizontality. It is shown that although all permutations of horizontality have featured in contract litigation before English courts, the actual influence has been slight. Indeed, the gap between contract law and fundamental rights is so wide that the contractual origin of a person’s legal position frequently features as a reason against finding a human rights violation. The causes uncovered are complex and impossible to reduce to a single factor. The analysis nevertheless opens up a fresh perspective on the constitutionalisation of contract law: it is not so much a normative phenomenon universally furthering specific values as a particular legal technique the impact and value of which are decisively moulded by the local environment in which it operates.
du Bois, Francois, Human Rights and English Contract Law: Parallel Worlds? (September 4, 2016). University of Leicester School of Law Research Paper No 16/31.