Addressing the Inadequacies of Private Law in the Regulation of Contracts – During and Post Contract Formation Periods

Abstract

It has been argued that weaknesses inherent Private Law rules, which contribute to its inability to effectively regulate contracts, are in part, attributed to its generality as well as inflexibility in adapting to individual situations. Whilst self-regulation, a constituent of the standard setting system which private law supplements, offers advantages which include proximity (in that self regulatory organisations are considered closer to the industry being regulated), flexibility, and a high level of compliance with rules, it will be highlighted in this paper that some other models of regulation, are capable of conferring greater flexibility, compliance, enforcement and accountability.The setting of standards with an adequate degree of specificity in order to provide effective guidance, as well as the lack of expertise in choosing between standards are amongst some of the challenges which the Private Law of Contract is confronted with.This paper aims to highlight and demonstrate why an interaction with public regulation, as well as an incorporation of substantive equality principles, will be required to address these weaknesses of Private Law. Further, it illustrates how through the evolvement of self regulation, and the interaction of self regulation with public regulation, Private Law has also evolved in its interaction with public regulation.

Keywords: regulation, implied contracts, Equity, undue influence, economic duress, bargaining power, self regulation, accountability, legal certainty