Contract Law Without Foundations Download Ebook PDF Epub Online

Author : Prince Saprai
Publisher : Oxford University Press
Release : 2019-02-21
Page : 250
Category : Law
ISBN 13 : 019108459X
Description :


This book advances a theoretical account of contract law, grounded in value pluralism. Arguing against attempts to delineate branches of legal doctrine by reference to single unifying values, the book suggests that a field such as contract law can only be explained and justified by the interaction of a multiplicity of moral values. In recent times, the philosophy of contract law has been dominated by the 'promise theory', according to which the morality of promise provides a 'blueprint' for the structure, shape, and content that contract law rules and doctrines should take. The promise theory is an example of what this book calls a 'foundationalist' theory, whereby areas of law reflect or are underlain by particular moral principles or sets of such principles. By considering contract law from the point of view of its theory, rules and doctrines, and broader political context, the book argues that the promise theory can only ever offer part of the picture. The book claims that 'top-down' theories of contract law such as the promise theory and its bitter rival the economic analysis of law seriously mishandle legal doctrine by ignoring or underplaying the irreducible plurality of values that shape contract law. The book defends the role of this multiplicity of values in forging contract doctrine by developing from the 'ground-up' a radical and distinctly republican reinterpretation of the field. The book encourages readers to move away from a 'top-down' theory of contract law such as the promise theory and instead embrace a distinctly republican approach to contract law that would justify the legal rules and doctrines we find in particular jurisdictions at particular times.


Author : Prince Saprai
Publisher : Oxford University Press
Release : 2019-02-28
Page : 250
Category : Law
ISBN 13 : 0191084581
Description :


This book advances a theoretical account of contract law, grounded in value pluralism. Arguing against attempts to delineate branches of legal doctrine by reference to single unifying values, the book suggests that a field such as contract law can only be explained and justified by the interaction of a multiplicity of moral values. In recent times, the philosophy of contract law has been dominated by the 'promise theory', according to which the morality of promise provides a 'blueprint' for the structure, shape, and content that contract law rules and doctrines should take. The promise theory is an example of what this book calls a 'foundationalist' theory, whereby areas of law reflect or are underlain by particular moral principles or sets of such principles. By considering contract law from the point of view of its theory, rules and doctrines, and broader political context, the book argues that the promise theory can only ever offer part of the picture. The book claims that 'top-down' theories of contract law such as the promise theory and its bitter rival the economic analysis of law seriously mishandle legal doctrine by ignoring or underplaying the irreducible plurality of values that shape contract law. The book defends the role of this multiplicity of values in forging contract doctrine by developing from the 'ground-up' a radical and distinctly republican reinterpretation of the field. The book encourages readers to move away from a 'top-down' theory of contract law such as the promise theory and instead embrace a distinctly republican approach to contract law that would justify the legal rules and doctrines we find in particular jurisdictions at particular times.


Author : Gregory Klass
George Letsas
Publisher : OUP Oxford
Release : 2014-12-18
Page : 500
Category : Law
ISBN 13 : 019102208X
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 : Martijn W. Hesselink
Publisher : Oxford University Press
Release : 2021-06-22
Page : 496
Category : Law
ISBN 13 : 0192655736
Description :


This title explores the normative foundations of European contract law. It addresses fundamental political questions on contract law in Europe from the perspective of leading contemporary political theories. Does the law of contract need a democratic basis? To what extent should it be Europeanised? What justifies the binding force of contract and the main remedies for breach? When should weaker parties be protected? Should market transactions be considered legally void when they are immoral? Which rules of contract law should the parties be free to opt out of? Adopting a critical lens, this book interrogates utilitarian, liberal-egalitarian, libertarian, communitarian, civic republican, and discourse-theoretical political philosophies and analyses the answers they provide to these questions. It also situates these theoretical debates within the context of the political landscape of European contract law and the divergent views expressed by lawmakers, legal academics, and other stakeholders. This work moves beyond the acquis positivism, market reductionism, and private law essentialism that tend to dominate these conversations and foregrounds normative complexity. It explores the principles and values behind various arguments used in the debates on European contract law and its future to highlight the normative stakes involved in the practical question of what we, as a society, should do about contract law in Europe. In so doing, it opens up democratic space for the consideration of alternative futures for contract law in the European Union, and for better justifications for those parts of the EU contract law acquis we wish to retain.


Author : Nathan B. Oman
Publisher : University of Chicago Press
Release : 2017-01-19
Page : 304
Category : Law
ISBN 13 : 022641566X
Description :


Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society. With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction. The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.


Author : Stephen A. Smith
Publisher : OUP Oxford
Release : 2004-03-25
Page : 480
Category : Law
ISBN 13 : 0191018813
Description :


This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, Contract Theory aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of 'contract theory', and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.


Author : Kathleen Gutman
Publisher : Oxford University Press
Release : 2014-03
Page : 500
Category : Law
ISBN 13 : 0199698309
Description :


Examining the constitutional foundations of European contract law, this book provides a thorough assessment of the extent of the European Union's competence to regulate contracts and offers a comprehensive comparative study of the contract law framework in the United States.


Author : Richard Craswell
Alan Schwartz
Publisher :
Release : 1994
Page : 342
Category : Business & Economics
ISBN 13 : 9781566629904
Description :


These essays have been specifically selected to further students' understanding of the basics of contract law, and they cover a wide range of topics. The text serves as an excellent facilitator for thought-provoking classroom discussions. Topics include contract formation, remedies for breach, and defenses.


Author : Paul S Davies
Magda Raczynska
Publisher : Bloomsbury Publishing
Release : 2020-07-23
Page : 488
Category : Law
ISBN 13 : 1509930515
Description :


Freedom of contract is a great strength of English law: indeed it is a key reason why English law is often the law of choice. But the terms of commercial contracts often restrict freedom of action. This book considers such terms. Leading commentators take stock of recent developments such as increased reliance on good faith/discretion and the rise of smart contracts. Insodoing, they make original contributions to ongoing debates concerning the limits to parties' freedom of contract. This important subject will interest drafters of commercial contracts keen to ensure that contracts are clear and enforceable; litigators disputing the meaning, scope and validity of terms; and academics interested in the purpose and nature of the exercises involved.


Author : James Gordley
Publisher : OUP Oxford
Release : 2006-01-05
Page : 496
Category : Law
ISBN 13 : 0191021717
Description :


Foundations of Private Law is a treatise on the Western law of property, contract, tort and unjust enrichment in both common law systems and civil law systems. The thesis of the book is that underlying these fields of law are common principles, and that these principles can be used to explain the history and development of these areas. These underlying common principles are matters of common sense, which were given their archetypal expression by older jurists who wrote in the Aristotelian tradition. These principles shaped the development of Western law but can resolve legal problems which these older writers did not confront.


Author : Gregory Klass
George Letsas
Publisher : Oxford University Press, USA
Release : 2015
Page : 391
Category : Law
ISBN 13 : 0198713010
Description :


"The chapters that constitute this volume were first presented at the inaugural Bentham House conference at University College London in 2013"--Acknowledgments (page v).


Author : Jiří Přibáň
Publisher : Edward Elgar Publishing
Release : 2020-12-25
Page : 416
Category : Law
ISBN 13 : 1789905184
Description :


This unique Research Handbook maps the historical, theoretical, and methodological concepts in sociology of law, exploring the rich and complex nature of this area of research. It argues that sociology of law flourishes due to its strong capacity for interdisciplinary engagement and links to other scientific concepts, methodologies and research fields.


Author : Kathleen Gutman
Publisher : OUP Oxford
Release : 2014-12-18
Page : 500
Category : Law
ISBN 13 : 019102547X
Description :


Situated within the context of the ongoing debate about European contract law, this book provides a detailed examination of the European Union's competence in the field of contract law. It analyses the limits of Union competence in relation to several relevant Treaty provisions which potentially confer competence on the Union to adopt a comprehensive contract law instrument and the exercise of Union competence in connection with the operation of the principles of subsidiarity, proportionality and sincere cooperation. It also explores the viability of several alternative and complementary routes to the adoption of such an instrument, including enhanced cooperation, an intergovernmental treaty and certain American techniques. Setting forth an elaborate account of the context for this debate and its chronological development at the European level, this book charts the discussions relating to the European Union's competence to regulate contract law and offers a comparative analysis of the approach taken to the approximation of contract law in the American setting. Setting forth a detailed account of the context for this debate and its chronological development at the European level, the book charts the discussions that have occurred within and outside the EU relating to the transnational competence to regulate contract law. Situating European constitutional law within the continued debate about European contract law, it also reflects upon the contract law structure of the United States and examines the viability of alternative and complementary routes to the adoption of a comprehensive instrument of substantive contract law.


Author : John Rogers Commons
Publisher : The Lawbook Exchange, Ltd.
Release : 2012-06-01
Page : 394
Category : Business & Economics
ISBN 13 : 1584775971
Description :


One of his most important American studies of labor economics published in the twentieth century, this book outlines an evolutionary and behavioral theory of value based on data drawn from court decisions. Analyzing the meaning of reasonable value as defined by the courts, he finds that the answer is based on a notion of reasonable conduct. Expanding this point to encompass the habits and customs of social life, he shows that court decisions are based on customs that are powerful forces shaping the economic system. In an early review Wesley Mitchell declared that Commons [1862-1945] carried this "analysis further along his chosen line than any of his predecessors. Into our knowledge of capitalism he has incorporated a great body of new materials which no one else has used adequately.": American Economic Review, XIV (1924) 253.


Author : Marco J. Jimenez
Publisher : Wolters Kluwer
Release : 2021-01-31
Page : 1456
Category : Law
ISBN 13 : 1543821758
Description :


Contract Law: A Case & Problem-Based Approach is a unique casebook that provides an organizational structure introducing students to each major area of contract law before exploring these areas in greater depth later in the casebook. Specifically, the casebook is broken into three major parts, each of which is designed not only to orient the students to the major subject areas of contract law but also meant to help them appreciate the connections and relationships between and among these various subject areas. Part I, the “30,000-foot view,” familiarizes students with contract law, discusses the sorts of problems with which contract law is concerned, and introduces them to some of the basic rules and theories governing contract law. Part II, the “10,000-foot view,” exposes students to each major substantive area of contract law in more depth by discussing one classic case in each area, along with additional historical, theoretical, and contextual materials to supplement the black-letter doctrine. After finishing Parts I and II, the student will have a basic understanding of each major area of contract law, along with a good understanding of how these parts fit together. Part III is therefore designed to explore each of the major subject areas in greater depth, and is organized along the lines of a traditional contracts casebook, including a healthy mix of classic and modern cases, short problems, and exercises. New to the Second Edition: Additional materials and cases added to explore the contract doctrines of impossibility and impracticability in light of past and current epidemics (in the case of polio) and pandemics (in the case of COVID-19). Additional case added to explore the relationship between Contract Law, Civil Rights, and Constitutional Law. Reorganization of some materials in Chapter 8 (defenses). More focused notes and appendices Professors and student will benefit from: Organization exposes students to main concepts, and gives professors a number of choices about how to teach their course. Helpful doctrinal introductions to each new major substantive section. Historical, theoretical, and comparative materials are presented to help students understand and think critically about the black-letter rules. “Thinking tools” feature that helps the student think critically about the law, along with theoretical, historical, doctrinal, contextual, and practice-oriented notes enrich the students’ black-letter experience. Enjoyable, contextual materials that are included after a number of classic cases help to bring to light fascinating background information.


Author : Reinhard Zimmermann
Publisher : Clarendon Press
Release : 1996
Page : 1241
Category : Law
ISBN 13 : 9780198764267
Description :


Dealing specifically with the Roman roots of the civilian tradition, this book confines itself to the traditional core areas of the law of obligations and its subject matter is purely the substantive private law.


Author : Christian Twigg-Flesner
Publisher :
Release : 2021
Page : 350
Category : Commercial law
ISBN 13 : 9781138911338
Description :


This title offers a clear overview for masters level students and those new to transnational commercial law, examining the process for transnational transactions in practical terms. It begins by discussing how the jurisdiction for legal rules is chosen in commercial conflict of laws situations, considering questions of forum, applicable law and recognition of judgments. It then moves on to questions of harmonisation and unification, looking at whether it is possible to introduce legal rules specifically for transnational transactions which are agreed between different jurisdictions and which would be substituted for the diverse provisions of national laws.


Author : Neil Andrews
Publisher : Cambridge University Press
Release : 2015-05-14
Page : 703
Category : Law
ISBN 13 : 1107061687
Description :


Significantly streamlined and updated, this second edition provides a clear introduction to all topics in the contract law curriculum.


Author : Donald J. Herzog
Publisher : Cornell University Press
Release : 2018-03-15
Page : 258
Category : Philosophy
ISBN 13 : 1501723006
Description :


Can political theorists justify their ideas? Do sound political theories need foundations? What constitutes a well-justified argument in political discourse? Don Herzog attempts to answer these questions by investigating the ways in which major theorists in the Anglo-American political tradition have justified their views. Making use of a wide range of primary texts, Herzog examines the work of such important theorists as Thomas Hobbes, John Locke, the utilitarians (Jeremy Bentham, J. S. Mill. Henry Sidgwick, J. C. Harsanyi, R. M. Hare, and R. B. Brandt), David Hume, and Adam Smith. Herzog argues that Hobbes, Locke, and the utilitarians fail to justify their theories because they try to ground the volatile world of politics in immutable aspects of human nature, language, theology, or rationality. Herzog concludes that the works of Adam Smith and David Hume offer illuminating examples of successful justifications. Basing their political conclusions on social contexts, not on abstract principles, Hume and Smith develop creative solutions to given problems.


Author : Harvard Business Review
Don Tapscott
Publisher : Harvard Business Press
Release : 2019-08-27
Page : 160
Category : Business & Economics
ISBN 13 : 1633697924
Description :


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