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Author: Dori Kimel Publisher: ISBN: Category : Languages : en Pages :
Book Description
The article comments on the supposed need for a paradigm for the theory of contract, primarily by way of engaging with the most prominent source of late of calls for a paradigm shift in contract theory, the relational theory of contract. The article distinguishes between an empirical, a doctrinal-prescriptive and a theoretical analytical line of argument as offered by relational theory. With regard to the first line of argument, the article argues that the thought that contract law already is relationally constituted is informed by a misunderstanding of the available alternatives to relational theory. With regard to the second line of argument, the article argues that the incorporation of relational norms into the law, although occasionally desirable, is not the only way nor always the best way to sustain the relational contract, and explores the proposition that, at times, the law best supports valuable social practices by refraining from absorbing their constitutive norms. Finally, by way of drawing an analogy with a putative relational theory of promise, the article offers an objection to the thesis that the key to a sound theoretical grasp of the nature of contract and its social role lies in the adoption of the relational paradigm.
Author: Dori Kimel Publisher: ISBN: Category : Languages : en Pages :
Book Description
The article comments on the supposed need for a paradigm for the theory of contract, primarily by way of engaging with the most prominent source of late of calls for a paradigm shift in contract theory, the relational theory of contract. The article distinguishes between an empirical, a doctrinal-prescriptive and a theoretical analytical line of argument as offered by relational theory. With regard to the first line of argument, the article argues that the thought that contract law already is relationally constituted is informed by a misunderstanding of the available alternatives to relational theory. With regard to the second line of argument, the article argues that the incorporation of relational norms into the law, although occasionally desirable, is not the only way nor always the best way to sustain the relational contract, and explores the proposition that, at times, the law best supports valuable social practices by refraining from absorbing their constitutive norms. Finally, by way of drawing an analogy with a putative relational theory of promise, the article offers an objection to the thesis that the key to a sound theoretical grasp of the nature of contract and its social role lies in the adoption of the relational paradigm.
Author: Peter Benson Publisher: Harvard University Press ISBN: 0674237595 Category : Law Languages : en Pages : 625
Book Description
Legal thinkers typically justify contract law on the basis of economics or promissory morality. But Peter Benson takes another approach. He argues that contract is best explained as a transfer of rights governed by a conception of justice. The result is a comprehensive theory of contract law congruent with Rawlsian liberalism.
Author: Dori Kimel Publisher: Bloomsbury Publishing ISBN: 1847310761 Category : Law Languages : en Pages : 160
Book Description
Liberal theory of contract is traditionally associated with the view according to which contract law can be explained simply as a mechanism for the enforcement of promises. The book bucks this trend by offering a theory of contract law based on a careful philosophical investigation of not only the similarities,but also the much-overlooked differences between contract and promise. Drawing on an analysis of a range of issues pertaining to the moral underpinnings of promissory and contractual obligations, the relationships in the context of which they typically feature, and the nature of the legal and moral institutions that support them, the book argues for the abandonment of the over-simplified notion that the law can systematically replicate existing moral or social institutions or simply enforce the rights or the obligations to which they give rise, without altering these institutions in the process and while leaving their intrinsic qualities intact. In its place the book offers an intriguing thesis concerning not only the relationship between contract and promise, but also the distinct functions and values that underlie contract law and explain contractual obligation. In turn, this thesis is shown to have an important bearing on theoretical and practical issues such as the choice of remedy for breach of contract, and broader concerns of political morality such as the appropriate scope of the freedom of contract and the role of the state in shaping and regulating contractual activity. The book's arguments on such issues, while rooted in distinctly liberal principles of political morality, often produce very different conclusions to those traditionally associated with liberal theory of contract, thus lending it a new lease of life in the face of its traditional as well as contemporary critiques.
Author: Peter Benson Publisher: Harvard University Press ISBN: 0674241991 Category : Law Languages : en Pages : 625
Book Description
“One of the most important contributions to the field of contract theory—if not the most important—in the past 25 years.” —Stephen A. Smith, McGill University Can we account for contract law on a moral basis that is acceptable from the standpoint of liberal justice? To answer this question, Peter Benson develops a theory of contract that is completely independent of—and arguably superior to—long-dominant views, which take contract law to be justified on the basis of economics or promissory morality. Through a detailed analysis of contract principles and doctrines, Benson brings out the specific normative conception underpinning the whole of contract law. Contract, he argues, is best explained as a transfer of rights, which is complete at the moment of agreement and is governed by a definite conception of justice—justice in transactions. Benson’s analysis provides what John Rawls called a public basis of justification, which is as essential to the liberal legitimacy of contract as to any other form of coercive law. The argument of Justice in Transactions is expressly complementary to Rawls’s, presenting an original justification designed specifically for transactions, as distinguished from the background institutions to which Rawls’s own theory applies. The result is a field-defining work offering a comprehensive theory of contract law. Benson shows that contract law is both justified in its own right and fully congruent with other domains—moral, economic, and political—of liberal society.
Author: Gregory Klass Publisher: OUP Oxford ISBN: 019102208X Category : Law Languages : en Pages : 417
Book Description
In recent years there has been a revival of interest in the philosophical study of contract law. In 1981 Charles Fried claimed that contract law is based on the philosophy of promise and this has generated what is today known as 'the contract and promise debate'. Cutting to the heart of contemporary discussions, this volume brings together leading philosophers, legal theorists, and contract lawyers to debate the philosophical foundations of this area of law. Divided into two parts, the first explores general themes in the contract theory literature, including the philosophy of promising, the nature of contractual obligation, economic accounts of contract law, and the relationship between contract law and moral values such as personal autonomy and distributive justice. The second part uses these philosophical ideas to make progress in doctrinal debates, relating for example to contract interpretation, unfair terms, good faith, vitiating factors, and remedies. Together, the essays provide a picture of the current state of research in this revitalized area of law, and pave the way for future study and debate.
Author: Hanoch Dagan Publisher: Cambridge University Press ISBN: 1108210805 Category : Law Languages : en Pages : 195
Book Description
This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. The Choice Theory of Contracts answers the field's most pressing questions: what is the 'freedom' in 'freedom of contract'? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller - two of the world's leading private law theorists - show exactly why and how freedom matters to contract law. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students a powerful normative vocabulary for understanding canonical cases, refining key doctrines, and solving long-standing puzzles in the law.
Author: George Letsas Publisher: Oxford University Press, USA ISBN: 0198713010 Category : Law Languages : en Pages : 417
Book Description
The 17 essays of this collection explore key philosophical questions underlying the institution of contract, and the philosophical issues arising in specific contract law doctrines, including contract formation, contract interpretation, unfair terms, the principle of good faith, defences, and remedies.
Author: Dori Kimel
Author: Dori Kimel
Author: Peter Benson
Author: Peter Benson
Author: Hanoch Dagan
Author: Dori Kimel
Author: Peter Benson
Author: Gregory Klass
Author: Scott E. Masten
Author: Hanoch Dagan
Author: George Letsas