How contract law could have prevented the pro gay marriage wedding cake row

By: Guest contributor

Date: 22 May 2015

How contract law could have prevented the pro gay marriage wedding cake rowYou may have heard the news. In a landmark decision concerning a case about freedom of expression, court rules Christian cake-makers should not have refused to bake cake with pro gay marriage theme. So it's all about liberty, justice and human rights?

Well, yes, and it plays well at the legal media box office. Everyone loves a good old discussion about justice, laws behind laws, jurisprudence. And some just love a gossipy controversy that involves two competing 'interest groups'. The judge cited 'discrimination' law in his summing up; the cake shop owned by a Christian family had discriminated against a customer for their beliefs.

But notice that the judge made a distinction: "You are conducting a business for profit". Business = objective = cannot/should not discriminate on any ground outside of the business. The laws that we have should, in theory, be about objective resolution of disputes or avoidance of dispute altogether. The law is science, not art. It's not about sociological observation or nebulous crusades for what is 'right'.

And as such, the matter could therefore arguably have been both resolved and explained via simple contract law. No need for any mention of gay rights or Christian agenda; we all have rights in contract law as both consumers and providers of goods or services.

It's worth noting that while the 'gay cake case' is reported as a piece of UK news, the matter was heard in the Northern Ireland courts. That's not quite the same legal system as England and Wales, but the core principles of contract law remain concrete and unchanging, whatever the territory, technology or idiom.

A contract starts with the invitation to treat. In this case, cake shop window displays offers or its website does the same (ecommerce is flexible and problematic and the seller should make clear in its terms and conditions what it defines as an 'offer').

An offer is then made by a customer ('please bake me a cake with big gay rights motif'). Offer gets accepted by cake shop when it confirms it will bake the cake. Money is paid; services and/or goods expected. The end. Money is paid; services/goods provided. It's a formal, binding arrangement, but one with enough stages to give both parties adequate time to understand the ramifications of the agreement and withdraw if need be.

Those processes are defined in landmark cases, the facts of which are cited and repeated by armies of law students. They are fun cases and easily learned. Just for starters see: Carlill v Carbolic Smoke Company and Harvey v Facey (1893); also Pharmaceutical Society of Great Britain v Boots (1953) and Fisher v Bell (1961).

The precise application of these principles is changing in the internet era. Note the famous Argos example back in 1999, when the retailer accidentally advertised Sony TVs for sale online for just £3 (the price should have been £299.99). The lucky buyers who clicked to purchase ended up getting a TV for a ridiculously low knock-down price.

Argos learned its lesson in ecommerce, harnessing old school contract law. To protect itself against a repeat of such events, its terms and conditions worked in a clause alerting customers to the fact that potential pricing errors could occur and in that case it would inform you as soon as possible, giving you the option to cancel. No more accidental bargain prices from Argos.

You have rights as a consumer or as a business providing goods/services. You also have to meet expectations and obligations to match terms and conditions both implied/pervasive (from statute/case law precedent) and explicit (from specific contracts). The law is not designed to protect or promote a particular interest group. It is there to ensure that common rights are upheld as citizens, consumers, businesspeople and so on. We should be able to follow an objective procedure and have assurances that actions can be taken if implied standards are not met.

There are expectations that any person should have met within a contract, if they have entered into one. That was perhaps the real issue here, at least potentially. Perhaps it just doesn't make for controversial headlines or fit the current legal zeitgeist? But contract law's principles are objective, clear and effective – whatever your religious or sexual persuasion.

Copyright © 2015 James Murphy, a graduate of New College, Oxford and the University of Law. He is a contributing editor at www.movieviral.com and www.whatisuniverse.com.

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