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Relational Contract Theory Notes

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ESSAY 3 - Relational contract theory 'It is no longer right to equate a contract of employment with commercial contracts. One possible way of describing a contract of employment in modern terms is as a relational contract" (LORD STEYN) (2003). This statement from Lord Steyn (dissenting) in Johnson has considerable weight. Traditional commercial contract law is "ill-equipped to deal with problems arising out of contractual relations" (Gaudel, 1998), and the history of the classical law of contract can be seen as a "desperate attempt to incorporate doctrinal refinements which will allow it to deal with the awkward facts presented by relational contracting" (Macneil). Instead the relational theory of employment contracts provides a "remarkably powerful explanation" (Boyle, 2007) of the changes in the law of the employment relationship which have occurred. This has particularly been as a result of the development of the mutual duty of trust and confidence and implied terms. This trust duty has increasingly signified and represented the relational aspect of employment contracts and meant vast increases in duties for both employers and employees. However, the decisions of Johnson and Edwards put a break on the relational theory. Despite this, it is submitted that the relational theory is increasingly evidenced in practice and is right as a matter of principle. Indeed, "it may not be fanciful" to suggest that the obligation will come to be seen as "the core common law duty" which dictates how employees should be treated during the course of the employment relationship (Brodie, 1998). The traditional commercial contract theory is "inadequate" (Boyle, 2007) as an explanation of the law of the contract of employment. As Atiyah explained, the model of contract theory that underlaid the classical law of contract was the model of the market where contracting parties bargained and negotiated by making offers, counter-offers and accepting them. The fairness of the bargain is irrelevant. Not one of these features of classical contract law is an "accurate description of the reality of the employment relationship given the unequal bargaining power of employer and employee, and the legal incidents implied into all contracts of employment" (Boyle, 2007). Instead, the main differences identified by Macneil between relational contracts and one-off discrete transactions are as follows. First, in relational contracts, the parties engage in social exchange as well as economic exchange. Second, relational contract tend towards long life. Third, in relational contacts, future co-operation is required. Fourth, relational contracts involve a great deal of exchange that cannot be or is not measured e.g. psychic satisfactions such as prestige and power. Finally, the complexities of the contractual relation will inevitably require a great deal of mutual participation in planning. It is thus clear that the employment contract is "at the very relational end of the discrete/relational spectrum" (Boyle, 2007). The "single most important development in the law of the contract of employment" (Freedland, 2003) in recent years has been the recognition of a generally implied term as to mutual trust and confidence. In Malik this was introduced as an obligation not to "without reasonable and proper cause, conduct itself in a manner calculated

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