The Death Of Contracts
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The Death Of Contract
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Author : Grant Gilmore
language : en
Publisher: Columbus : Ohio State University Press
Release Date : 1974
The Death Of Contract written by Grant Gilmore and has been published by Columbus : Ohio State University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 1974 with Law categories.
The Death Of Contracts
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Author : Franklin G. Snyder
language : en
Publisher:
Release Date : 2016
The Death Of Contracts written by Franklin G. Snyder and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016 with categories.
Contract law is dying. Admittedly, given earlier erroneous reports of its demise, including (most prominently) that of Grant Gilmore in 1974, we might evoke memories of the boy who cried “Wolf!” But if we remember that story, the boy did eventually turn out to be right. The wolf eventually showed up. In this paper, written for a law review symposium on “Contract Law in 2025,” we look at contract law and adjudication simply as a technology -- what Jacques Ellul called a “technique” -- that is used by particular societies to solve particular problems at particular times. We do not think that this idea is controversial. While many legal theorists have argued over the years for some sort of deeper status for contract and other forms of private law, Karl Llewellyn and other Legal Realists emphasized the practical connection between contract and business practice, and that idea still largely dominates the field today. In this paper, we look at contract law and adjudication with a very wide lens to examine how the various pieces of interrelated contract technique correspond with the realities of the modern contracting world. The question for us is not whether particular parts of contract law are good or bad, but is the system working? And, more important, is it likely to work in anything like its current form in the world of the future? We examine what we call both the structural and the rule techniques of contract law. The former is the body of judicial institutions and systems that process breach of contract claims, while the latter is the body of what is usually called “doctrine” on which decisions are based. In this sense, the court system is the hardware on which contract law “software” runs. We find that the hardware (the judicial system) is built for a world in which transportation is easy but communication at a distance are hard, where legal costs are low, where decisions are rendered quickly, and where there is little competition in the business of resolving disputes. The software (contract doctrine) is rooted in a world in which it is difficult to tell commercial transactions from other interpersonal relationships; contracts are formed by individual haggling and reflect the unique individual understandings of the two parties; most contracting parties are sloppy and pay little attention to the deals they strike; lawyers are not usually involved in preparing contracts; language used by contracting parties varies sharply from place to place and is often different from that used by the general population; writings are expensive to produce and used rarely; parties do not usually need exactly what they bargained for; courts are the only available public mechanisms for dealing with fraud and unfair practices in transactions; and there are no good tools for making reliable estimates of gains and losses. In other words, as we show, contract technique is designed for a world that looks exactly like the world that developed it, the United States in the period from 1860 to 1960. It bears very little resemblance to the world of today, which is dominated by mass-market standard-form written contracts crafted by skilled lawyers, sophisticated modern contracting practices, globalization, prohibitively expensive and time-consuming litigation processes, and consumers and other contracting parties who are protected by a host of legislative and regulatory tools much better adapted than contract law to root out bad practices. This bad technological fit is a major reason why vast chunks of what used to be contract law (e.g., products liability, consumer law, employment law, insurance law, pension benefit law, etc.) have been carved off for more efficient treatment under other schemes, and why parties at both the high end (global industries) and the low end (individual consumers) of the legal system have been fleeing the courts in increasingly large waves. The changes that have occurred in the world to date, and which have resulted in this mismatch between technology and problems, are only going to accelerate. These processes will make the kind of contract rules embodied in common-law appellate opinions and reflected in the Restatements even less and less relevant. They have already lost much of their utility for the vast mass of contracting done in the U.S. and around the world. The bits that are likely to remain useful -- and even grow more useful in a standardized age -- will increasingly find themselves incorporated as principles in other bodies of law. The detritus that remains will serve not as helpful tools for furthering private ordering, but as hidden perils that will serve mainly to harm the unwary and drive up the costs of litigation.
The Death Of Contract The Ages Of American Law
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Author : Grant Gilmore
language : en
Publisher:
Release Date : 1997
The Death Of Contract The Ages Of American Law written by Grant Gilmore and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997 with Contracts categories.
The Death Of Contract Together With The Ages Of American Law Grant Gilmore
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Author :
language : en
Publisher:
Release Date : 1997
The Death Of Contract Together With The Ages Of American Law Grant Gilmore written by and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997 with Contracts categories.
Reconstructing Contracts
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Author : Douglas G. Baird
language : en
Publisher: Harvard University Press
Release Date : 2013-04-30
Reconstructing Contracts written by Douglas G. Baird and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-04-30 with Law categories.
Every legal system must decide how to distinguish between agreements that are enforceable and those that are not. Formal bargains in the marketplace and casual promises in a social setting mark the two extremes, but many hard cases lie between. When gaps are left in a contract, how should courts fill them? What does it mean to say that an agreement is legally enforceable? If someone breaks a legally enforceable contract, what consequences follow? For 150 years, legal scholars have debated whether a set of coherent principles provide answers to such basic questions. Oliver Wendell Holmes put forward the affirmative case, arguing that bargained-for consideration, expectation damages, and a handful of related ideas captured the essence of contract law. The work of the next several generations, culminating in Grant Gilmore’s The Death of Contract in 1974, took a contrary view. The coherence Holmes had tried to bring to the field was illusory. It was more sensible to see contracts as merely a species of civil obligation and resist the temptation to impose rigid and artificial rules. In Reconstructing Contracts, Douglas Baird takes stock of the current state of contract doctrine and in the process reinvigorates the classic framework of Anglo-American contract law. He shows that Holmes’s principles are fundamentally sound. Even if they lack that talismanic quality formerly ascribed to them, properly understood they continue to provide the best guide to contracts for a new generation of students, practitioners, and judges.
The Fall And Rise Of Freedom Of Contract
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Author : F. H. Buckley
language : en
Publisher: Duke University Press
Release Date : 1999-08-27
The Fall And Rise Of Freedom Of Contract written by F. H. Buckley and has been published by Duke University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 1999-08-27 with Law categories.
Declared dead some twenty-five years ago, the idea of freedom of contract has enjoyed a remarkable intellectual revival. In The Fall and Rise of Freedom of Contract leading scholars in the fields of contract law and law-and-economics analyze the new interest in bargaining freedom. The 1970s was a decade of regulatory triumphalism in North America, marked by a surge in consumer, securities, and environmental regulation. Legal scholars predicted the “death of contract” and its replacement by regulation and reliance-based theories of liability. Instead, we have witnessed the reemergence of free bargaining norms. This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anticontractarian theories. Scholars in this school note that consumers are not as helpless as they have been made out to be, and that intrusive legal rules meant ostensibly to help them often leave them worse off. Contract law principles have also been very robust in areas far afield from traditional contract law, and the essays in this volume consider how free bargaining rights might reasonably be extended in tort, property, land-use planning, bankruptcy, and divorce and family law. This book will be of particular interest to legal scholars and specialists in contract law. Economics and public policy planners will also be challenged by its novel arguments. Contributors. Gregory S. Alexander, Margaret F. Brinig, F. H. Buckley, Robert Cooter, Steven J. Eagle, Robert C. Ellickson, Richard A. Epstein, William A. Fischel, Michael Klausner, Bruce H. Kobayashi, Geoffrey P. Miller, Timothy J. Muris, Robert H. Nelson, Eric A. Posner, Robert K. Rasmussen, Larry E. Ribstein, Roberta Romano, Paul H. Rubin, Alan Schwartz, Elizabeth S. Scott, Robert E. Scott, Michael J. Trebilcock
Symposium
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Author : Northwestern University (Evanston, Ill.). School of Law
language : en
Publisher:
Release Date : 1995
Symposium written by Northwestern University (Evanston, Ill.). School of Law and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1995 with Contracts categories.
The Death Of Contract Redux
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Author : Jason MacLean
language : en
Publisher:
Release Date : 2017
The Death Of Contract Redux written by Jason MacLean and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with categories.
This article examines the conceptual and practical problems posed by so-called boilerplate contracts (or standard form contracts, contracts of adhesion) through the lens of the Supreme Court of Canada's recent jurisprudence on contract law. Specifically, can non-negotiable and one-sided boilerplate “contracts” satisfy, not only the standard requirements of contract formation, but also the court's recognition of an organizing obligation of good faith and its inherently fact-sensitive approach to contractual interpretation? Through an analysis of two recent applications of the court's new contract law jurisprudence, this article concludes that non-negotiable boilerplate contracts - which are more accurately termed “products” - cannot and should not be shoehorned into the existing categories of contract law. Consequently, contract law is dead yet again. Law reform is necessary.
A Contracts Anthology
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Author : Peter Linzer
language : en
Publisher: Anderson Publishing Company (OH)
Release Date : 1995
A Contracts Anthology written by Peter Linzer and has been published by Anderson Publishing Company (OH) this book supported file pdf, txt, epub, kindle and other format this book has been release on 1995 with Law categories.
Comparative Contract Law
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Author : Pier Giuseppe Monateri
language : en
Publisher: Edward Elgar Publishing
Release Date : 2017-04-28
Comparative Contract Law written by Pier Giuseppe Monateri and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-04-28 with Law categories.
This comprehensive Handbook offers a thoughtful survey of contract theories, issues and cases in order to reassess the field's present vision of contract law. It engages a critical search for the fault lines which cross traditions of thought and globalized landscapes. Comparative Contract Law is built around four main groups of insights, including: the genealogies of contractual theoretical thinking; the contentious relationship between private governance and normative regulations; the competing styles used to stage contract law; and the concurring opinions expressed within the domain of other disciplines, such as literature and political theory. The chapters in the book tease out the tensions between a global context and local frameworks as well as the movable thresholds between canonical expressions and heterodox constructions.