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Freedom of contract


Freedom of contract

Freedom of contract is the freedom of individuals and groups (such as corporations) to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing. The freedom to contract is the underpinning of laissez-faire economics and is a cornerstone of free-market libertarianism. Through freedom of contract, individuals entail a general freedom to choose with whom to contract, whether to contract or not, and on which terms to contract.


  • History 1
  • United States 2
    • Lochner v. New York 2.1
  • United Kingdom 3
  • See also 4
  • References 5
  • Notes 6
  • External links 7


Henry James Sumner Maine proposed that social structures evolve from roles derived from status to those based on contractual freedom. A status system establishes obligations and relationships by birth whereas a contract presumes that the individuals are free and equal. Modern libertarianism such as that advanced by Robert Nozick sees freedom of contract as the expression of the independent decisions of separate individuals pursuing their own interests under a "minimal state".

United States

Lochner v. New York

In 1902 a New York baker named Joseph Lochner was fined for violating a state law limiting the number of hours his employees could work. He sued the state on the grounds that he was denied his right to "due process". Lochner claimed that he had the right to freely contract with his employees and that the state had unfairly interfered with that right.

In 1905 the Supreme Court used the due process clause in the 14th Amendment to declare unconstitutional the New York state statute imposing a limit on hours of work. Justice Peckham wrote for the majority: "Under that provision no state shall deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment..."

Writing in dissent, Oliver Wendell Holmes accused the majority of basing its decision on laissez-faire ideology. He believed that they were making law based on economics rather than interpreting the constitution. Neither did he believe that "Liberty of Contract" existed or was intended in the constitution.

In his "Liberty of Contract" (1909), Roscoe Pound critiqued freedom of contract laws by laying out case after case where labor rights were struck down by State and Federal Supreme Courts. Pound argued the courts' rulings were "simply wrong" from the standpoint of common law and "even from that of a sane individualism" (482). Pound further compared the situation of labor legislation in his time to common opinion of usury and that the two were "of the same type" (484). Pound lamented that the legacy of such "academic" and "artificial" judicial rulings for liberty of contract engendered a "lost respect for the courts", but predicted a "bright" future for labor legislation (486-87).[1]

The Supreme Court applied the liberty of contract doctrine sporadically over the next three decades, but generally upheld reformist legislation as being within the states' police power. In 1937 the Court reversed its view in the case West Coast Hotel Co. v. Parrish. In that case the court upheld a Washington state law setting a minimum wage.

United Kingdom

In the late 19th century, the English judiciary espoused "freedom of contract" as a generally applicable feature of public policy, best expressed in Lord Denning MR compared "freedom of contract" with oppression of the weak, as he outlined the development the law had undergone.

See also


  • Atiyah, P.S: "The Rise and Fall of Freedom of Contract" (Oxford University Press, USA; New ed; Dec 12, 1985) ISBN 978-0-19-825527-7
  • Bernstein, David E.: Freedom of Contract, George Mason Law & Economics Research Paper No. 08-51 (2008)
  • Trebilcock, Michael J.: "The Limits of Freedom of Contract" (Harvard University Press) ISBN 978-0-674-53429-2


  1. ^ Roscoe Pound, "Liberty of Contract," 18 Yale Law Journal 454 (1909).
  2. ^ (1875) 19 Eq 462, 465, regarding freedom of contract and patents

External links

  • Freedom to Contract by Dr. Edward Younkins
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