Freedom of contract or freedom to exploit? Freedom of Contract for individuals in the post-online era

Abstract

Abstract The principle of freedom of contract is a fundamental tenet of contract law, embodying the notion that individuals and entities possess the autonomy to freely choose whether to enter into agreements. This concept underscores the significance of voluntary choice in contractual relationships, presupposing a basic level of equality between the parties involved. However, the real-world application of this principle often reveals significant constraints, deviating from its theoretical ideals. This dissertation critically examines the principle of freedom of contract, with a particular focus on its operation within the online sphere. It aims to explore how this principle functions in practice, delving into its meaning and the various perspectives that shape its interpretation. Moreover, the dissertation addresses the critical discourse surrounding the doctrine, questioning whether there is a need to balance it against the risks of exploitation that arise from unequal bargaining power. The analysis extends to the challenges inherent in online contractual relations, scrutinising the responses of the UK government to these challenges along with approaches from other jurisdictions. Additionally, the dissertation reflects on the broader societal implications of employing the principle of freedom of contract as a tool for monopolistic behavior. Through case studies, this work seeks to determine whether the principle of freedom of contract can, in fact, lead to exploitation. It also examines whether governmental intervention is justified in this context, presenting several arguments in favour of such measures. The dissertation further depicts how the definition of freedom of contract can vary depending on the interpretive lens applied, ultimately concluding that no single approach is sufficient to address the complexities posed by the digital age.