Contract Theory

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ISBN: 9780198765615 | 0198765614
Cover: Paperback
Copyright: 5/20/2004

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This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, Introduction to Contract Theory aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract.

Preface

vii

Acknowledgements

Table of cases

xix

Table of statutes

xxv

Table of regulations

xxvii

PART I. Methodology

What is Contract Theory?

(38)

What is contract theory?

(3)

Four criteria for assessing theories of contract

(1)

Fit

(4)

Coherence

(2)

Morality

(11)

Morality and law's self-understanding

(3)

The weak version (conspiracy theories)

(1)

The strong version

(1)

The moderate version

(5)

Summary re the morality criterion

(1)

Transparency

(8)

The weak version

(1)

The strong version

(1)

The moderate version

(4)

Law in the books and law in practice

(4)

Conclusion

(5)

PART II. General Theories of Contract

Introduction to General Theories: Classification and Overview

(13)

Two questions for contract theory

(1)

The analytic question

(3)

The normative question

(2)

The link between the analytic and normative questions

(2)

Theories not accounted for

(2)

Conclusion

(2)

The Nature of Contractual Obligations: The Analytic Question

(52)

Promissory theories

(22)

The concept of a promissory obligation

(1)

The promissory explanation of contract law

(2)

Fit objections to promissory theories

(9)

Moral objections to promissory theories

(9)

Reliance theories

(19)

Moral objections to reliance theories

(5)

Fit objections to reliance theories

(6)

A residual role for reliance theories?

(1)

Transfer theories

(6)

Moral objections to transfer theories

(1)

Fit objections to transfer theories

(2)

Conceptual objections to transfer theories

101

(1)

Concluding remarks

102

(1)

Conclusion: Redrawing the map of private law

103

(3)

The Justification of Contractual Obligations: The Normative Question

106

(61)

Utilitarian theories: Efficiency theories

108

(28)

Exchange and the role of contract law

110

(5)

Remedies for breach of contract: The efficient breach theory

115

(4)

Fit objections

119

(7)

The `unrealistic assumptions' objection

126

(1)

The moral objection

127

(5)

The transparency objection

132

(4)

Summary of criticisms of efficiency theories

136

(1)

Other utilitarian theories

136

(4)

Promoting distributive justice

137

(1)

Promoting valuable relationships

138

(1)

Promoting autonomy

139

(1)

Rights-based theories

140

(18)

The meaning of `rights' in rights-based theories

141

(1)

The nature of contractual rights in rights-based theories

142

(2)

The role of remedies in rights-based theories

144

(3)

Rights-based explanations of the main features of contract law

147

(9)

The behavioural objection to rights-based theories

156

(1)

The moral objection

157

(1)

Mixed theories

158

(2)

Fairness-based theories

160

(1)

Conclusion

161

(6)

PART III. Contract Law Doctrines

Establishing Agreement: The Law of Offer and Acceptance

167

(42)

The core offer and acceptance rule

168

(5)

Promissory theories

168

(1)

Reliance theories

169

(2)

Transfer theories

171

(1)

Conclusion

172

(1)

Beyond the core offer and acceptance rule

173

(14)

The objective approach

173

(3)

Simultaneous exchanges

176

(4)

The kind of self-imposed obligation: The bilaterality of contracts

180

(3)

`Acceptance' by conduct: The status of unilateral contracts

183

(4)

Determining if an agreement has been reached

187

(8)

Invitations to treat

187

(1)

The time and place of formation

188

(4)

Certainty, completeness, and matching acceptance

192

(3)

Pre-contractual liability: Revocation, breaking off negotiations, and bad faith

195

(12)

Firm offers

195

(2)

Revoking in bad faith

197

(4)

Defining bad faith by example

201

(6)

Conclusion

207

(2)

The Kinds of Agreements that are Enforced: Formalities, Intention to Create Legal Relations, Consideration, and Estoppel

209

(36)

Form requirements

210

(2)

Intent to create legal relations

212

(3)

Consideration

215

(30)

The formal justification for consideration

216

(6)

Substantive justifications for consideration

222

(3)

The realist justification: Consideration as a good reason for enforcement

225

(7)

Conclusion to consideration

232

(1)

Promissory estoppel

233

(12)

The Kinds of Agreements not Enforced: Substantive Limitations on Enforceability

245

(24)

The punishment justification

247

(1)

The `dignity of the courts' justification

248

(1)

The `no obligation' justification

249

(14)

The scope of the no obligation principle: connecting the activity to the contract

251

(3)

The scope of the no obligation principle: defining `objectionable'

254

(9)

The `wrongdoing principle' justification

263

(4)

The scope of the wrongdoing principle: connecting the activity to the contract

265

(1)

The scope of the wrongdoing principle: defining `objectionable'

266

(1)

Conclusion

267

(2)

The Content of the Contract: Interpreting and Implying Terms

269

(46)

The interpretation of express contractual terms

271

(9)

The objective approach

271

(3)

Interpretative sources: The importance of context

274

(4)

Rules of interpretation

278

(2)

Implied terms: general introduction

280

(1)

Implied term explanations of mistake, frustration, and discharge for breach

281

(25)

The law relating to mistake

282

(1)

Fairness and efficiency-based implied term explanations of mistake: Preliminary comments on tacit consent and gap-filling

283

(4)

The fairness explanation of mistake cases

287

(5)

The efficiency explanation of mistake cases

292

(5)

The interpretation explanation of mistake cases

297

(7)

Conclusion to the law regarding mistake

304

(1)

A duty of disclosure?

304

(1)

Frustration and discharge for breach: A short note

305

(1)

Individualized implied terms

306

(1)

Standardized implied terms

307

(7)

Conclusion

314

(1)

Excuses for Non-performance: Duress, Unconscionability, Mistake, Misrepresentation, Frustration, and Discharge for Breach

315

(61)

Duress

316

(24)

The wrongdoing principle

317

(6)

The consent principle

323

(16)

Conclusion to duress

339

(1)

Unconscionability

340

(25)

Defining unconscionability

342

(2)

Do courts care about unconscionability?

344

(4)

Normative justifications for unconscionability: Introduction

348

(1)

Unconscionability as procedural unfairness

348

(4)

Unconscionability as substantive unfairness

352

(5)

The orthodox ('non-reductionist') view: Unconscionability as a combination of procedural and substantive fairness

357

(7)

Conclusion to unconscionability

364

(1)

Mistake

365

(6)

Agreement mistakes

366

(1)

Mistakes caused by misrepresentations

367

(1)

Mistaken assumptions

368

(3)

Conclusion to mistake

371

(1)

Changed circumstances (frustration) and discharge for breach

371

(3)

Frustration and breach as `destroying the foundations' of a contract

372

(1)

Breach as an offer to terminate

373

(1)

Conclusion to frustration and discharge for breach

374

(1)

Conclusion

374

(2)

Breach of Contract: The Puzzle of Strict Liability

376

(11)

Defending strict liability

377

(5)

Contract law vindicates property rights

378

(1)

Strict liability is self-imposed (the `implied agreement' explanation)

379

(3)

Challenging the assumption of strict liability

382

(4)

Legal limits on strict liability

383

(1)

Contractual obligations as conjunctive obligations

384

(2)

Conclusion

386

(1)

Remedies for Breach

387

(45)

An outline of general approaches to remedies

388

(10)

Rights-based approaches

389

(5)

Utilitarian ('efficiency') approaches

394

(4)

Specific performance

398

(11)

Rights-based explanations

398

(5)

Efficiency-based explanations

403

(5)

Conclusion to specific performance

408

(1)

Damages

409

(21)

The normative debate: Rights-based versus efficiency-based explanations

409

(4)

The analytic debate: A reliance-based explanation of damages?

413

(4)

Punitive damages

417

(3)

Cost of performance versus diminution in value

420

(5)

Remoteness of damages

425

(5)

Conclusion

430

(2)

Bibliography

432

(15)

Index

447

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Contract Theory

Summary

Author Biography

Table of Contents

Supplemental Materials

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