The autonomy of the common law of the contract of employment from the general law of contract

Brodie, Douglas (2016) The autonomy of the common law of the contract of employment from the general law of contract. In: The Contract of Employment. Oxford University Press, Oxford, pp. 124-144. ISBN 9780198783169

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    Abstract

    This chapter addresses the relationship between the general principles of contract law and the more specific rules pertaining to the employment contract. The topic is not simply a matter of academic interest. It is important that we understand whether further evolution of the employment contract will be informed by those general principles or a self-contained body of rules. The dynamics of the rule creation process need to be fully understood. The subject is sometimes addressed on the basis that the paramount question is whether the law of the employment contract should be viewed as an instance of general contractual principles or would be better seen as a discrete body of law: `A central dilemma…is the extent to which [the]…law should, on the one hand, borrow from the general law of contract applicable to commercial and consumer contracts, and on the other, differentiate itself from those general rules in order to tailor a special law for the contract of employment.’ This `central dilemma’ is somewhat unhelpful as neither depiction is wholly explicatory. Many of the rules of the employment contract are certainly applications of general principles but, as is the case with all nominate contracts, instances exist of modifications or exceptions. No less significant is the manner in which such modifications and exceptions are likely to evolve and impact on other types of contract or indeed contract law as a whole.