The Ambitions of Contract as Promise Thirty Years On ... - UCL

More documents

Recommendations

Info

Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission disappointed promisee is more likely to know what will best remedy the difficulties into which the breach has plunged him, and requiring him to take the initiative—though not at his own expense—is the best way to avoid a dead- weight loss. IV. Alan Schwartz and Robert Scott have considered at length another way in which the law of contracts seems to diverge from what an institution single- mindedly determined by the promise principle might look like. 50 As has many times been observed, the promise principle has a strong affinity to what has been called the will theory of contract, according to which the state’s imposition of contractual liability is justified as a matter of political morality by the fact that the obligation is self-imposed. It is the supposed departure from fidelity to these premises by features of the standard contract law of damages that moralists like Shiffrin deplore and skeptics about the role of morality in law celebrate. Schwartz and Scott investigate a seeming divergence which goes much more to the heart of these premises. They point to doctrines that systematically decline to base legal liability on the fullest, most accurate inquiry into what the parties 50 Alan Schwartz & Robert E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926 (2010) [herinafter Schwartz & Scott, Redux]. This article builds on an earlier article. Alan Schwartz & Robert E. Scott, Contract Theory and The Limits of Contract Law, 113 YALE L.J. 541 (2003) [hereinafter Schwartz & Scott, Contract Theory]. It should be noted that the authors limit their analysis to contracts between business firms. 26
Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission really intended (willed). 51 They point to them and leave us to conclude that if these doctrines do not accord with some moral theory (mine, for instance?) then so much the worse for that theory. Consider the rule that treats an agreement as fully integrated if from within its “four corners” the written agreement has the look and feel of an integrated agreement, and the parole evidence rule that excludes prior or contemporaneous evidence that may suggest that the parties meant something more or different from what they have written down. Such doctrines would seem to violate both freedom of and freedom from contract. And predictably, promissory rigorists deplore as overly formalistic the textualist preferences of these doctrines. 52 The rejection of these rules is associated with the scholar A. L. Corbin 53 , the jurist Roger Traynor, 54 the Restatement (Second) 55 and the U.C.C. 56 (There is an irony here: Corbin is associated with 51 E.g., Schwartz & Scott, Contract Theory, supra note 50, 585–85 (majority-language linguistic default), id. at 590– 91 (parol evidence rule); see also Schwartz & Scott, Redux, supra note 50, at 945–46 (noting that parties will contract with these default rules in mind, thereby decreasing incorrect interpretations). 52 See the discussion in Jody S. Kraus & Robert E. Scott, Contract Design and the Structure of Contractual Intent, 84 NYU L. REV. 1023, 1046-48 (2009). Of course I doi not suggest that either Kraus or Scott are promissory rigorists. 53 E.g., Arthur L. Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 CORNELL L.Q. 161 (1965). 54 See Pacific Gas & Elec. Co. v. G. W.Thomas Drayage & Rigging Co., 442 P.2d 641, 645 (1968) (“[R]ational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties.”). 55 RESTATEMENT (SECOND) OF CONTRACTS § 201 cmt. b (1981) (“[T]he question of meaning in cases of misunderstanding depends on an inquiry into what each party knew or had reason to know.”); id. § 209 (permitting introduction of extrinsic evidence in order to make a preliminary determination of whether an agreement is completely integrated and the parol evidence rule applies). 27
Page 1 and 2: Ambitions of Contract As Promise 24
Page 25: Ambitions of Contract As Promise 24

The Ambitions of Contract as Promise Thirty Years On ... - UCL

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?