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

Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission
the antiformalist realist school, while formalism is associated with Williston,
who is in turn associated with the will theory of contracts.)
Schwartz and Scott deftly untangle this skein of apparent contradictions in
a way that bears a similarity to what I have suggested above in respect to
remedies doctrine. 57 Parties considering the matter ex ante will often have
reason to limit what evidence a court may look to in determining what were their
contractual intentions. For instance, trials in which all evidence that may bear
on the question of what were the parties true intentions, trials in which the full
truth of their states of mind is plumbed, would in most cases be long and costly.
The four corners and parol evidence rules, in addition to limiting introduction of
mounds of evidence, often allow a decision on summary judgment.
Furthermore, since extrinsic evidence of intention is often ambiguous and/or
contradictory, limiting what the judge and trier of fact may look to gives the
parties greater assurance against surprising and anomalous decisions by
decision-makers with unexpected dislikes and predilections.
But this argument stinks in the nostrils of those who view contract as a
moral institution and courts as instruments in the search for truth; on such a
view, considerations of cost and efficiency are no more appropriate in the
56 U.C.C. §§ 2-202, 2-208 (2003).
57 See Schwartz & Scott, Contract Theory, supra note 50, at 587–90.
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