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We normally have to adhere to regulations when:

  • Buying labour (employment: minimum wage, parental leave etc.)
  • Renting out property (tenancy: notice periods, property standards etc.)
  • Selling goods (consumer guarantees)
  • Offering online services (personal/data privacy)
  • Etc. etc.

We know that at least in some cases it is possible to break free from those restrictions. For example, instead of employing people we can do business with them i.e. have contract for services (as opposed to contract of service). We can put any bizarre privacy-related provisions in the EULA of our apps and websites (although I heard the EU regulations can override them). Perhaps we can try selling goods/services on the express condition that consumer guarantees do not apply.

So, in modern common-law countries (say the Five-Eyes UK, US, CA, AU, NZ), how impossible is it to contract out of any regulation? To what extent is it common for the law to limit the freedom of contract and dictate what terms you can/cannot contract on? How challengeable/constitutional those limitations are? In most cases, is it just a matter of writing a good/smart contract to break free from the limitations, or is the freedom of contract just limited full stop?

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  • This question is really too general to have a meaningful short answer. Different ways of de facto dealing with a regulation other than compliance in the expected fashion by doing something economically equivalent can have an infinite number of permutations. This is not a question with a universal answer that applies to all subject area. Each situation is different and has different answers.
    – ohwilleke
    Nov 9, 2017 at 19:44

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You cannot contract outside the law

Any "contract" that purports to break the law isn't a contract - it's an unenforceable agreement.

For example, across all jurisdictions, a contract that is unconscionable is void. So is a contract that requires one of the parties to break the law - a "contract" for murder for example.

In addition, you cannot call an employment relationship a "business" relationship - if the relationship meets the requirements of an employer-employee relationship then that's what it is and woe betide you if you haven't complied with all relevant entitlement, tax, insurance and safety laws.

In addition, all of the relationships you listed are contracts.

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