As a professional, it is important to understand the concept of “contracting out of common law.” This is essentially when two parties come together and contractually agree to alter or eliminate certain common law rights or obligations.
But can you actually contract out of common law? The short answer is yes, but there are limitations to this practice.
First, it`s important to understand what common law is. Common law refers to laws that have been developed over time through judicial decisions. These laws are not found in statutes or written law, but rather are based on past court decisions and legal precedents.
In certain situations, parties may want to deviate from the common law to better suit their specific needs. For example, in a business contract, parties may want to alter the default remedies available under common law for breach of contract or limit their liability to the other party.
However, certain common law rights and obligations may not be contractually altered or eliminated. For example, in employment law, certain statutory rights cannot be contracted out of, such as minimum wage requirements or protections against discrimination.
Additionally, certain contracts may be deemed unenforceable if they attempt to contract out of certain common law rights or obligations that are considered to be fundamental or public policy concerns.
It`s also worth noting that even when parties do contract out of certain common law rights or obligations, they may still be subject to liability under other laws or legal theories. For example, a party may be liable for fraud or misrepresentation even if their actions were contractually permissible.
In conclusion, while parties can contract out of common law in certain circumstances, there are limitations and potential consequences to doing so. It`s important to assess the risks and benefits of such a decision and to seek legal advice to ensure that the contract is legally enforceable and aligns with applicable laws and regulations.