Rethinking Contract Law And Contract Design

Contract law allows parties to set their own rules within constraints. It provides a set of default rules and if the parties do not like them, they can change them. Rethinking Contract Law and Contract Design explores various long-standing contract doc

In this series of chapters on contract damages issues, Victor P. Goldberg provides a framework for analyzing the problems that arise when determining damages, and applies it to case law in both the USA and the UK.

In this series of chapters on contract damages issues, Victor P. Goldberg provides a framework for analyzing the problems that arise when determining damages, and applies it to case law in both the USA and the UK. In analyzing direct damages, the author treats the problem as pricing the option to terminate. This sheds light on the question of the date at which damages should be measured and the role of post-breach information in damage assessment. It shows how the treatment of the so-called lost volume seller in both countries results in the court constructing an absurd contract, setting an option price with perverse characteristics. Goldberg then considers two questions regarding consequential damages--the enforceability of consequential damages exclusion clauses and whether the lost profits claims of new businesses should be rejected. Contracts professors, judges, lawyers and law students will be inspired by this volume to rethink the law of contract damages.

This book contains the papers prepared for a conference held at the Wisconsin Law School in 2011 to honour the work of Stewart Macaulay, one of the most famous contracts scholars of his generation. Macaulay has been writing about contracts and contract law for over 50 years; the 1960s were particularly productive years for him, when he introduced many novel ideas into the scholarly world. Macaulay's foundational work for what is now called relational contract theory was published during this period. Macaulay is also known for his use of empirical research and interdisciplinary theories to illuminate our knowledge of contracting practices. The papers in this volume reflect, in diverse ways, on the subsequent influence and the contemporary relevance of Macaulay's work. All the contributors are important contracts scholars in their own right: David Campbell and John Wightman from the UK, Brian Bix, Jay Feinman, Robert Gordon, Claire Hill, Charles Knapp, Ethan Leib, Deborah Post, Edward Rubin, Carol Sanger, Robert Scott, Gordon Smith, Josh Whitford (with Li-Wen Lin) and William Woodward from the USA. The volume also reproduces Macaulay's most cited paper, 'Non-Contractual Relations in Business', and excerpts from two other important papers of his, 'Private Legislation and the Duty to Read-Business Run by IBM Machine, the Law of Contracts and Credit Cards', and 'The Real and The Paper Deal: Empirical Pictures of Relationships, Complexity and the Urge for Transparent Simple Rules'.

An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Weaving together theoretical, historical, and legal approaches, this book offers a fresh perspective on the modern revival of the concept of allegiance, identifying and contextualising its evolving association with theories of citizenship.

‘Rethinking’ legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning?

The ‘law-language-law’ theme is deeply engraved in Occidental culture, more so than contemporary studies on the subject currently illustrate. This insightful book creates awareness of these cultural roots and shows how language and themes in law can be richer than studying a simple mutuality of motives. Rethinking Law and Language unveils today’s problems with the two faces of language: the analogue and the digital, on the basis of which our smart phones and Artificial Intelligence create modern life.