Only the free can negotiate

Citation

McAdam, B. (2013), "Only the free can negotiate", International Journal of Law in the Built Environment, Vol. 5 No. 3. https://doi.org/10.1108/ijlbe.2013.41105caa.001

Only the free can negotiate

Article Type: Editorial From: International Journal of Law in the Built Environment, Volume 5, Issue 3

A theme running through the papers appearing in this issue is that of fairness and justice, and the difficulty of deciding an outcome in disputed cases. In Abela’s analysis of the implementation of energy performance regulations in Mediterranean states, the justice theme is less to the fore, though underlying any consideration of environmental sustainability is the concept of fair stewardship of existing resources for future generations. Jorge probes the boundaries of the contractual relationship, highlighting inconsistencies and critiquing the basis of limiting loss recovery to the four corners of the contract. Still within the contractual context, the penalty doctrine as outlined by Brand and Davenport turns on the view of the prevailing law in Australia that it is, essentially, not fair that a party should be coerced into compliance with normal contractual obligations by fear of a disproportionate collateral obligation. Management agreements represent contracts in a real property setting and Gibbons teases out aspects of inequity in the power relationship between tenants and developers. Dixon, meanwhile raises fundamental questions about the nature of land ownership in England and Wales, and the tensions between certainty and justice which the present law creates.

Reflection on land ownership may spark a historical contemplation of rights and obligations. An ability to exploit land was one of the earliest sources of wealth for human beings, whether a hunting range, a forest rich in fuel and building materials, or a flood plain for the first farming. Access to a life-giving resource secured a competitive advantage over those without access, inevitably leading to conflict and violence between the “haves” and the “have-nots”. Dixon’s paper reminds us that the origins of land ownership, even in the now relatively peaceful country of England, are conquest and physical might. An equivalent historical analysis might be applied to commercial relationships, which have now also been subsumed into the immensely complex structures described and explored by the other authors.

Close examination of these complexities by practitioners and academics is vitally important for the continued improvement of commercial and industrial processes. Such examination is, though, predicated on the existence of a society where conflict has been sufficiently transmuted from physical force into legal rights, where courts can determine what is just and permitted. Whilst it is fortunate that these are the societies which prevail across the majority of the world, war and physical strife remain matters of daily report across the globe. As I write this editorial, His Excellency Nelson Mandela is ailing, and aged. During the time when he was politically active, he secured much progress in the advance of justice throughout South African society, and he did so based on a clear conception of the nature of justice and freedom. In 1985 when he was offered the chance of personal freedom in return for a number of undertakings by the apartheid state, he rejected the offer on the basis that “only free men can negotiate, prisoners can’t enter in contracts” (Mandela, 1985).

My intention in touching on the historical and political features of the themes of justice and fairness which percolate through this issue, is to give pause for thought and appreciation of features of society which are sometimes taken for granted.

Brodie McAdam