Classical Agreement Definition

Atiyah similarly situates the beginnings of the collectivist tendency in contract law in the last third of the nineteenth century and discusses many of Dicey`s underlying factors. According to Atiyah, the trend was largely due to the rise of a consumer society with a prosperous working class, the growth of the corporate society, the expansion of democracy, and the creation of a huge government bureaucracy. All of this was correlated with conceptual changes. Conceptions of positive freedom, a more benevolent importance of the state under the Reform Act of 1867, the transfer of responsibilities (from individuals to its social environment) and the egalitarian ideal, all made the classical model less and less appropriate. As a result, efforts have been made to restore concrete equality or to create a substitute to the detriment of abstract freedom of contract. [103] The legal treatment of promises of marriage has also been questioned as a place of abstract contractual principles that correspond to the classical formulation. Ginger Frost, for example, challenges the understanding of cases of violation of the marital promise as extreme places of victory of individualism and abstraction in the treatise. Instead, these actions showed that judges, despite the official language of the contract, brought social, sexist and class values to contractual matters. [57] Histories that regard collectivism as a historical trend imply that in the nineteenth century it had limited significance for the importance of the treaty. Nineteenth-century collectivism is a specific stage in the historical attack on classical treaty law.

The important point at this stage is their quality of second degree or reactive quality, on which historians largely agree. The content of the collectivist attack was the inadequacy of the regime governed by the ideal of contractual freedom. The drama of the “contract case” was not a dispute over the importance of the contract in its classical formulation, but a dispute over the desirable or continuing nature of the contract. Collectivism has tolerated the classical view of the treaty and has moved on to limiting its scope; or, on another reading, moved to effectively correct its errors. Nineteenth-century critics largely left aside the possibility that the current legal regime did not or did not necessarily correspond to what was necessary for the abstraction of the free treaty, instead pointing out that freedom of contract was harmful. [74] Another lens to address this point is the opposition between the state and civil society. The treaty was, in the classic view, something that belonged to civil society or a private sphere of action. The welfare state (or not in this direction) – the acquis of collectivism – has not called into question the opposition between the state and civil society. [78] On the contrary, collectivism redefines the roles of the state: in addition to its role of legalizing private interactions, the state now had a redistributive function and a responsibility to protect individuals from severe adversity. And because the opposition between the state and civil society regarding the source of the commitments remained intact – in legal thought, no “private/public flip” [79] had yet been realized – the controversy between individualism and collectivism in the treaty could be formulated in terms of “non-intervention” and “intervention”. The theme of (non-) intervention remained the same idea of the treaty, the debate focused on the role of the State with regard to it, especially with regard to inequalities in fact in contractual relations.

[80] The notion of self-sufficiency is closely linked to the opposition between self and society, which presents the social as a threat to individual development. . . .