Contract law : rules, theory, and context / Brian H. Bix.
2012
KF801 .B55 2012 (Map It)
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Details
Author
Title
Contract law : rules, theory, and context / Brian H. Bix.
Published
Cambridge [UK] ; New York : Cambridge University Press, 2012.
Call Number
KF801 .B55 2012
Course Lists
ISBN
9780521850469 (hardback)
0521850460 (hardback)
9780521615532 (paperback)
0521615534 (paperback)
0521850460 (hardback)
9780521615532 (paperback)
0521615534 (paperback)
Description
xiv, 202 pages ; 24 cm.
System Control No.
(OCoLC)781594081
Summary
"This book offers an accessible introduction to all aspects of American contract law, useful to both first-year law students and advanced contract scholars"-- Provided by publisher.
"Contract law is a category within legal practice (and legal education), though there are many occasions where there are significant overlaps with other categories, or where the borderline is not especially clear. (For example, some commentators have argued that contract law should be seen as a mere sub-category of tort law ; and, in different ways, the boundary lines between contract law and areas like restitution and property are fluid and uncertain much of the time.) Contract law is a category of particular rules and decisions, but (as elsewhere in law) it is a mistake to focus too narrowly on the "facts" of the actual decisions and the "black-letter rules" of treatises. Law is, and likely has always been, a reflective exercise, where there is a natural tendency (among practitioners and observers both) to seek more general principles, to explain and justify past decisions and give guidance for future decisions"-- Provided by publisher.
"Contract law is a category within legal practice (and legal education), though there are many occasions where there are significant overlaps with other categories, or where the borderline is not especially clear. (For example, some commentators have argued that contract law should be seen as a mere sub-category of tort law ; and, in different ways, the boundary lines between contract law and areas like restitution and property are fluid and uncertain much of the time.) Contract law is a category of particular rules and decisions, but (as elsewhere in law) it is a mistake to focus too narrowly on the "facts" of the actual decisions and the "black-letter rules" of treatises. Law is, and likely has always been, a reflective exercise, where there is a natural tendency (among practitioners and observers both) to seek more general principles, to explain and justify past decisions and give guidance for future decisions"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 163-184) and index.
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Preface
xi
1.
Philosophical Problems of Contract Law
1
Suggested Further Reading
3
2.
History and Sources
4
A.
Roman Law
5
B.
English Writ System
6
C.
The Range and Limits of Contract Law
10
D.
Sources of Contract Law
11
1.
Domestic Law
11
2.
International Sources
13
E.
Theoretical Implications
15
Suggested Further Reading
16
3.
Formation
18
A.
Offer and Acceptance
18
1.
The Nature of Offers
19
2.
Timing of Offers and Acceptances
21
3.
Offers for Unilateral Contracts
23
4.
Objective and Subjective
24
5.
Battle of the Forms
25
6.
Electronic Contracting and Rolling Contracts
28
7.
Open Terms and Agreements to Agree
30
8.
Construction Bid Contracts
31
B.
Consideration
32
1.
Historical Origins
32
2.
Current Doctrine
34
C.
Statute of Frauds
37
D.
Other Grounds for Recovery
40
1.
Promissory Estoppel
40
2.
Promissory Restitution
42
3.
Restitution/Unjust Enrichment
42
E.
Formation-Based Defenses
43
1.
Misrepresentation and Nondisclosure
44
2.
Mistake
46
3.
Duress
47
4.
Undue Influence
48
5.
Minority
49
6.
Mental Incapacity
50
7.
Intoxication
51
F.
Theoretical Implications
51
Suggested Further Reading
52
4.
Interpretation
54
A.
Objective and Subjective
54
B.
Default Rules, Incomplete Contracts, and Implied Terms
55
C.
Rules of Interpretation
57
1.
Canons of Interpretation
58
2.
Plain Meaning
58
D.
Parol Evidence Rule
59
1.
The Rule(s)
59
2.
Trusting Writings versus Trusting Face-to-Face Promises
65
E.
Warranties
66
F.
Interpretation and Fairness
67
G.
Choice of Law and Conflict of Laws
68
H.
Theoretical Implications
69
Suggested Further Reading
69
5.
Performance
71
A.
Conditions
71
1.
On-Off Switches
71
2.
Excuse of Failure of Condition
72
B.
Responses to Current and Future Problems in Performance
74
1.
Prior to Scheduled Performance: Anticipatory Repudiation and Adequate Assurances
74
2.
Failures in the Middle of Performance
76
3.
Modification
77
4.
Failure in Completed Performance: Substantial Performance, Divisibility, Restitution
79
C.
Impossibility, Impracticability, and Frustration of Purpose
81
D.
Good Faith
83
E.
Theoretical Implications
85
Suggested Further Reading
85
6.
Enforcement and Remedies
87
A.
Substantive (Fairness) Constraints and Public Policy
87
1.
Fairness Constraints
87
2.
Unconscionability
90
3.
Public Policy
92
B.
Limitations on Remedies
92
1.
Causation
93
2.
Certainty
93
3.
Foreseeability
93
4.
Mitigation
94
5.
Unrecoverable Damages
98
C.
Measuring Damages: Expectation, Reliance, Restitution
99
1.
Expectation Damages
99
2.
Reliance Damages
100
3.
Restitution
101
D.
Special Cases
102
1.
Cost of Completion versus Diminution of Value
102
2.
Restitution for the Breaching Party
104
E.
Equitable Remedies
106
F.
Agreed Remedies
107
G.
Third-Party Rights and Duties
110
1.
Third-Party Beneficiary
110
2.
Assignment and Delegation
112
H.
Bilateral Structure, Corrective Justice, and Optimal Incentives
113
I.
Efficient Breach and the (A)morality of Contract Law
115
J.
Theoretical Implications
117
Suggested Further Reading
117
7.
Special Categories of Contract Law
119
A.
Employment Agreements
119
B.
Insurance Law
121
C.
Landlord-Tenant
122
D.
Real Estate Agreements
122
E.
Franchise Agreements
123
F.
Premarital Agreements
124
G.
Government Contracts
125
H.
Theoretical Implications
126
Suggested Further Reading
126
8.
Modern Contract Law Practices: Questions of Legitimation and Moral Obligation
128
A.
The Gap between Ideal and Reality
128
B.
Theories of Contract Law
132
C.
Theory Meets Practice
136
D.
Rethinking Contract Law
138
E.
The Moral Obligation to Keep Contracts
141
F.
Implications for Government Regulation
144
Conclusion
145
Suggested Further Reading
146
9.
How Many Contract Laws?
147
A.
The History of General Theory
147
B.
The Nature of General Theory
148
C.
General Contract Law
152
D.
Contract and Law
154
E.
Consequences
155
F.
Note on Proving a Negative
155
G.
Note on Rights and Remedies
156
H.
One or Many Theories (Revisited)
159
1.
Essential and Accidental
159
2.
Deciding between General and Particular Theories
159
3.
Why Does It Matter?
160
Conclusion
161
Suggested Further Reading
162
Bibliography
163
Table of Cases
185
Statutes and Restatements
193
Index
197