Compare and contrast the different explanations for the emergence of classical contract law.
Under classical contract theory, a contract gives rise to binding obligations expressed by the joint will of the parties. The courts protect individuals' rights to contract and give effect to the parties' intentions. It is generally conceded that classical contract theory saw its development in England in the nineteenth century throughout the Industrial Revolution.
One explanation for the emergence of classical contract law in England is that it kept pace with the social ideology and expectations of the day. It developed due to changes in society's values and culture. Medieval ideas that regulated social and economic life were gradually breaking down. Prevailing practices of barter, the exchange of property with another form of property, gave rise to problems and disputations. Justice dispensed in terms of property or prison rapidly proved to be inadequate. The notion of social contracts emerged as bases for justifying the property rights of the elite. Justice and the courts could not keep pace with the growth and variety in an industrial economy in England. These changes had some connection to development of contract law in Australia, but not directly.
Australian contract law is based on inherited English contract law as it applied up to 1828. Not until establishment of the Legislative Assembly and the Supreme Court were decent people of enterprise able to rely on judgments of civil cases by jury, in the conduct of trade. For almost 40 years, reliance by citizens of the colony, such as settlers, merchants, bankers and tradesmen, on military law and its interpretation of the common law of England, as it applied at the time, rarely experienced justice dispensed fairly as we have grown to expect today. This is another view of the emergence of classical contract law.
Rather than the expression of social ideology, it is a product of a market economy looking beyond its immediate situation to benefit from trade. In the Australian experience Law in harmony with social aspirations was a dream agonizingly and belatedly fulfilled, and Contract Law has developed since with a more direct relevance to the industry and commerce of the day.