Over the course of the 20th century, contract law has flowed in two streams: a ‘private law’ stream which emphasises private intention and fidelity to a bargain struck, and a ‘public regulation’ stream which emphasises public benefit and community values. The incompatibility between the two has always been clear to those who look, but a ‘closure of discourse’ between the two (Hugh Collins’s phrase) has ensured that they develop separately from one another. In recent decades a number of commentators have suggested that this closure is breaking down. If so, it will no longer make much sense to contrast ‘the intentions of the parties’ and ‘the intentions of the regulator’ as irreconcilable opposites, or to deny that contracts are often corrected by the law on grounds of unfairness. This chapter examines the viability of a divided law of contract going forward.
Hedley, Steve, Two laws of contract, or one? (July 1, 2019) in TT Arvind and Jenny Steele (eds), Contract Law and the Legislature (Hart, 2020) 147-161.