By Gregory Klass, George Letsas, Prince Saprai
ISBN-10: 019178141X
ISBN-13: 9780191781414
ISBN-10: 0198713010
ISBN-13: 9780198713012
Within the final ten years, there was a revival of curiosity within the philosophical research of agreement legislations. a lot of the dialogue relates again to Charles Fried's 1981 declare that agreement legislation is predicated at the philosophy of promise, producing what's this day referred to as 'the agreement and promise debate'. This quantity faucets into this renewal of curiosity by means of bringing jointly major philosophers, criminal theorists, and contract Read more...
summary: within the final ten years, there was a revival of curiosity within the philosophical examine of agreement legislations. a lot of the dialogue relates again to Charles Fried's 1981 declare that agreement legislation is predicated at the philosophy of promise, producing what's at the present time referred to as 'the agreement and promise debate'. This quantity faucets into this renewal of curiosity by means of bringing jointly major philosophers, felony theorists, and agreement attorneys to debate the philosophical foundations of this region of legislation
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71 Barnett marks this divergence between contract and promise not just within but at the very threshold of contract. 72 Moral rigorists might deny the requirement of this meta-intention, just as they might deny the validity of meta-intentions regarding remedies, reasoning thus: a promise creates a moral obligation that is other-regarding—it creates a moral duty to another, and the promisor has no moral business denying the promisee the ability to enforce that obligation. This is indeed similar to the objections to contractual clauses limiting the remedy to the forfeiture of a small deposit or requiring arbitration before a religious panel.
2 See notes 34–6. 18 Charles Fried But at the end of the day (or 30-plus years) I still believe that Contract as Promise is correct to locate as the generating genius of this body of law the promise principle, the moral invention that facilitates human collaboration by self-imposed moral obligation. I In the late 1970s, when Contract as Promise was written, there were two views of contract in the field: a traditional, doctrinal, and not particularly theorized view that saw contract as the law’s way of allowing private parties to create and enforce the terms that would govern transactions and long-term undertakings,3 and a critical literature that saw contract law as a tool of social control imposing obligations on parties growing in part, but only in part, from dealings into which they had voluntarily entered.
Any rule like Posner’s efficient breach rule would then come into play as one of several default rules, supplied by the court in the absence of party specification. 46 The law does, it must be admitted, take Shiffrin’s side to the extent that such remedial specification is subject to greater scrutiny and control by the courts than are substantive terms. 48 But it is hard to see how such limitations—at least as applied to sophisticated parties—accord with the general principles of freedom of contract and party autonomy.