1849804516

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RESEARCH HANDBOOKS IN COMPARATIVE LAW

Series Editors:

Series Editors: Francesco Parisi, Oppenheimer Wolff and Donnelly Professor of Law,

University of Minnesota, USA and Professor of Economics, University of Bologna, Italy

and Tom Ginsburg , Professor of Law, University of Chicago, USA

Thevolumesinthisseriesofferhigh-leveldiscussionandanalysisonparticularaspectsof legal systems and the law. Well-known scholars edit each handbook and bring together accessible yet sophisticated contributions from an international cast of top researchers. Thefirstseriesofitskindtocoverawiderangeofcomparativeissuessocomprehensively, this is an indispensable resource for students and scholars alike.

Titles in this series include: Comparative Constitutional Law

Edited by Tom Ginsburg and Rosalind Dixon

Methods of Comparative Law

Edited by Pier Giuseppe Monateri

Comparative Law and Society

Edited by David S. Clark

Comparative Labor Law

Edited by Matthew W. Finkin and Guy Mundlak

Comparative Tort Law

Edited by Mauro Bussani and Anthony Sebok

Comparative Competition Law

Edited by John Duns, Arlen Duke and Brendan Sweeney

Comparative Law and Economics

Edited by Giovanni B. Ramello and Theodore Eisenberg

Comparative Criminal Procedure

Edited by Jacqueline E. Ross and Stephen C. Thaman

Comparative Law and Regulation

Understanding the Global Regulatory Process

Edited by Francesca Bignami and David Zaring

Comparative Contract Law

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Comparative Contract Law

Edited by

Pier Giuseppe Monateri

Professor of Comparative Law, Department of Law,

University of Turin, Italy

RESEARCH HANDBOOKS IN COMPARATIVE LAW

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©The editor and contributing authors severally 2017

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher.

Published by

Edward Elgar Publishing Limited The Lypiatts

15 Lansdown Road Cheltenham Glos GL50 2JA UK

Edward Elgar Publishing, Inc. William Pratt House

9DeweyCourt Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2016944271 This book is available electronically in the Law subject collection

DOI 10.4337/9781785369179

ISBN9781849804516(cased) ISBN9781785369179(eBook)

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Contributors

Giuseppe

Giuseppe BellantBellantuonouono is Associate Professor of Comparative Private

Law at the University of Trento, Faculty of Law. His research interests include the comparative analysis of regulatory systems, methodologies of comparative law, interdisciplinary approaches to legal studies, law and technology, comparative energy law, and comparative communications law. Among his recent publications are: Contratti e regolazione nei mercati dell’energia (2009); Law, Development and Innovation (co-edited with F. Lara, 2015); and Convergences and Divergences Between the Italian and the Brazilian Legal Systems (co-edited with F. Puppo, 2015).

Br

Briaian n H. H. BiBixx is Frederick W. Thomas Professor of Law and

Phil-osophy, University of Minnesota. He was a Visiting Professor of Law at Georgetown University Law Center during the Spring semester of 2000 and at George Washington University Law School in the Fall of 1999. Professor Bix was the Lecturer in Jurisprudence and Legal Reasoning at King’s College, University of London, from 1991 to 1993. He is a Member of the Bar of the States of Minnesota, Connecticut and Massa-chusetts, and a member of the American Law Institute. His publications are primarily in the areas of contract law, legal philosophy and family law, and include: Contract Law: Rules, Theory, and Context (2012); A Dictionary of Legal Theory (2004); and Jurisprudence: Theory and

Context (7th ed., 2015).

Daniel

Daniela a CarpiCarpi is Professor of English Literature at the Department of

Foreign Languages and Literature at the University of Verona. She is the President of AIDEL and a member of Academia Europaea. She is a member of AIA, Associazione Italiana di Anglistica; of the European Society for the Study of English, ESSE; and of IASEMS, Italian Association of Shakespearean and Early Modern Studies. She is on the editorial board of the journals Symbolism: A Journal of Critical Aesthetics (New York), Anglistik (University of Heidelberg), Cardozo Law Bulletin (University of Trento), La Torre di Babele (University of

Parma), Law and Humanities (University of Warwick) and CoSMo (Comparative Studies in Modernism) (University of Turin). She co-founded and co-directs the journal Polemos. Her fields of research are

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literature and law, literature and science, literature and visual arts, Renaissance theatre, postmodernism, critical theory. Her latest mono-graph is Fairy Tales in the Postmodern World. No Tales for Children (2016).

Marta Cenini

Marta Cenini is Researcher of Private Law at the University of Milan.

In 2013 she obtained the National Scientific Qualification (Law no. 240 of 30 December 2010, article 16) to the position of Associate Professor in Private Law. She holds a Ph.D in Private Law and she has published in English and Italian in the fields of contractual damages and tort law, remedies for breach of contracts, legislation concerning circulation of goods, securities, and, recently, environmental liability, always using as research tools the comparison with laws of different countries and the economic analysis of law. Among her publications, Gli acquisti a non domino (2009); Cases and Materials on Italian Private Law (with Rossella Esther Cerchia, 2016).

Carlo Ludovico Cordasco

Carlo Ludovico Cordasco is Ph.D Candidate in Political Philosophy at

the Department of Politics at the University of Sheffield and Visiting Scholar within the Politics, Philosophy and Economics Program at the University of Pennsylvania.

Cristina Costantini

Cristina Costantini_{is Associate Professor of Private Comparative Law}

at the University of Perugia. She is member of AIDC (Associazione Italiana di Diritto Comparato), AIDEL (Associazione Italiana di Diritto e Letteratura), Selden Society (London), ESSE (The European Society for the Study of English), and AIA (Associazione Italiana di Anglistica). She is Managing Editor of Cardozo Electronic Law Bulletin; member of the Scientific Committee of the review CoSMo (Comparative Studies in Modernism); Assistant Editor of Pólemos: A Journal of Law, Literature and Culture; member of the Editorial Board of Comparative Law Review and Comparazione e Diritto Civile . Her main fields of research include the comparative construction of legal traditions, the history of English common law, the intellectual assessment of the liminal thresholds within the humanities (law and literature; law and philosophy; law and religion). Among her numerous publications: La Legge e il Tempio. Storia parata della giustizia inglese (2007); The Keepers of Traditions: The English Common Lawyers and the Presence of Law (2010); Representing Law: Narrative Practices, Poetic Devices, Visual Signs and the Aesthetics

of the Common Law Mind (2013).

Sidia Fiorato

Sidia Fiorato is Researcher of English Literature at the University of

Verona. Her fields of research include detective fiction and the legal thriller, law, literature and culture, literature and the performing arts,

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Shakespeare studies, the fairy tale. Among her publications, Il Gioco con l’ombra. Ambiguità e metanarrazioni nella narrativa di Peter Ackroyd (2003); The Relationship Between Literature and Science in John Ban-ville’s Scientific Tetralogy (2007); and essays on the contemporary novel, Shakespearian adaptations, Victorian literature.

Peter Goodrich

Peter Goodrich is Professor of Law and Director of the Program in Law

and Humanities at Cardozo School of Law, New York. He was the founding dean of the department of law, Birkbeck College, University of London, where he was also the Corporation of London Professor of Law. He has written extensively in legal history and theory, law and literature and semiotics and has authored 12 books. He is managing editor of Law and Literature, and was the founding editor of Law and Critique . His most recent book is Legal Emblems and the Art of Law (2013); and to this coruscating and lucifugous erudition can be added co-writing and co-producing the award winning documentary Auf Wiedersehen:’Til We Meet Again (Diskin Films, 2012).

James Gordley

James Gordley is W.R. Irby Professor of Law at Tulane Law School and

Shannon Cecil Turner Professor of Jurisprudence Emeritus at the Univer-sity of California School of Law at Berkeley. He is a member of the American Academy of Arts and Sciences, a Corresponding Fellow of the British Academy, and a membre titulaire of the Académie international du droit comparé.

Massim

Massimiliano iliano GranieriGranieri is Associate Professor of Comparative Private

Law, Department of Mechanical and Industrial Engineering of the University of Brescia Health and Wealth (Italy) and adjunct faculty of European Private Law at the Widener Law School (United States). He holds a JD from the LUISS Guido Carli School of Law, a Ph.D from the University of Florence and an LLM from the University of California at Berkeley, Boalt Hall. He was the Jemolo Fellow at Nuffield College, Oxford (United Kingdom).

Andr

Andrew ew HutHutchischisonon is an Associate Professor in the Department of

Commercial Law at the University of Cape Town, South Africa. His affinity for contract law began during his LLM studies at UCT (2005–6), and was carried through to his Ph.D thesis on fundamental change of circumstances in contract law (hardship), completed in 2010. He has published a body of work in leading South African and inter-national law journals on contract law. His main research interests are general principles of contract law, specific and commercial contracts, insurance law, constitutional development of contract law, decolonization

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of law/customary law (with reference to contracting), comparative con-tract law, and legal interpretation.

Barb

Barbara ara LuppLuppii is Assistant Professor of Economics, University of

Modena. She holds a Ph.D in Political Economy from the University of Bologna and a Ph.D in Economics from the London School of Eco-nomics and Political Science. She has held visiting positions at the Eitan Berglas School of Economics at Tel Aviv University and at the University of Minnesota. Her recent research has focused on law and economics, finance and behavioural economics and bounded rationality. Among her main publications, ‘Deterrence of Wrongdoing in Ancient Law’ in G. Dari Mattiacci, Roman Law and Economics (2015); ‘Behavioral Approach to Tort Law’ in J. Teitelbaum and K. Zeiler (eds), Handbook of Behavioral Law and Economics (Edward Elgar Publishing, 2015);

‘Rent-Seeking in the Law’ in R. Congleton and A. Hillman (eds), Companion to the Political Economy of Rent-Seeking (Edward Elgar Publishing, 2015).

Maria Rosaria Marella

Maria Rosaria Marella is Full Professor of Law at the University of

Perugia Faculty of Law, where she teaches Private Law and heads the Law Clinic on Health, Environment and Territory. She is a member of the Société de Législation Comparée, the International Academy of Com-parative Law, the Association of Italian Private Law Scholars and the Italian Society of Feminist Legal Scholars (GIUdIT). She has been awarded the Canadian Studies Faculty Research Award twice (in 2008 and 2010). Her current fields of study concern comparative family law and the law of property with a focus on the tension between the traditional private property paradigm and alternative forms of ownership and use of resources. She has recently published a book on family law as a governmental apparatus, Di cosa parliamo quando parliamo di famiglia (with G. Marini, 2014) and a book on the commons and their legal regulation, Oltre il pubblico e il privato. Per un diritto dei beni comuni (M.R. Marella ed., 2012). Other recent publications include: ‘The Commons as a Legal Concept’, Law & Critique (forthcoming); ‘The Contractualisation of Family Law in Italy’ in F. Swennen (ed.), Contrac-tualisation of Family Law – Global Perspectives (2015); ‘Famille’ (with Giovanni Marini) in M. Troper and D. Chagnollaud (eds), Traité inter-national de droit constitutionnel (2012); and ‘Critical Family Law’, American University Journal of Gender, Social Policy & the Law (2011).

Giovanni Marini

Giovanni Marini is Full Professor of Law at the University of Perugia

Department of Law, where he teaches Private Comparative Law. He received his law JD from the Università degli studi di Roma, La Sapienza (Rome, Italy) and the MCL from Michigan Law School (Ann Arbor,

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United States) where he was Fulbright fellow. He has been a researcher at European University Institute (Fiesole) and a visiting professor at Yale Law School (New Haven, United States), Max Plank Institute (Hamburg, Germany), Harvard Law School (Cambridge, United States) and Univer-sité Paris I, Sorbonne (Paris, France). He has published papers and books in many areas of interest, such as comparative law, comparative jurispru-dence, tort law, property and contract law and family law.

Pier Giuseppe Monateri is Visiting Professor at Sciences Po, Paris and

Professor of Comparative Law at the University of Turin. He is titular member of the International Academy of Comparative Law (New York); member of Accademia delle Scienze (Bologna); Profesor Honorario Universidad San Marcos (Lima); Vice-President of AIDEL (Associazione Italiana di Diritto e Letteratura). He is former Vicarious Rector of the University of Trento and Past-President of the Italian Association of Comparative Law. He has been the first Director of the Department of Private Law of the State, Scuola Superiore della Pubblica Amministrazi-one (Rome) and former member of the Board of the Italian Society for Law and Economics. He has been honoured as Jean Monnet Professor of European Law at the University of Trento. His main fields of research include comparative law, contract law, tort law, and law and humanities. Among his publications are The Italian Legal System: An Introduction (with M. Livingston and F. Parisi, 2015); Classics in Comparative Law (with T. Ginsburg and F. Parisi, 2014); Methods of Comparative Law (2012); Black Gaius: A Quest for the Multicultural Origins of the Western Legal Tradition (2000).

Flavi

Flavia a MonceriMonceri is Associate Professor of Political Philosophy, Università

del Molise, Italy, where she teaches Political Philosophy, Gender Studies and Multiculturalism and Intercultural Communication. Her research interests include continental philosophy (from Nietzsche on), queer and transgender theories, disability studies, intercultural communication, film philosophy, complexity and systems theories, East Asian cultures, religions, and institutions (especially Japan).

Pablo Moreno Cruz

Pablo Moreno Cruz_{is Professor of Comparative Law at the University}

Externado de Colombia. He is currently also teaching Theory of Com-parative Law in the Master’s on Global Rule of Law and Constitutional Democracy at the University of Genoa, and a module of the course Law of the Americas at the University of Ferrara. Between 2011 and 2015 he taught Comparative Law at the University of Genoa, Imperia. He holds a law degree from the University Externado de Colombia (2000), a Master’s in European Private Law from the University of Roma, La

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Sapienza (2005) and a Ph.D in Comparative Law from the University of Ferrara (2010). He has been a visiting scholar at the University of Pennsylvania, Penn Law School (2008). He is a member of the editorial board of Revista de derecho privado published by the University Exter-nado de Colombia.

Horatia Muir Watt

Horatia Muir Watt is Professor at the Law School, Sciences Po Paris,

where she currently co-directs the speciality Global Governance Studies within the Master’s in Economic Law. She teaches and publishes in the field of private international law and comparative law, where she de-velops critical and interdisciplinary approaches. She was elected in 2013 to the Institute of International Law. She is Editor in Chief of the Revue critique de droit international privé and on the editorial board of various international law reviews or journals ( Journal of Private International Law, European Review of Contract Law , Transnational Legal Theory) and co-editor of various collections: International Studies in the Theory of Private Law , Private Law in European Context , and ‘A droit ouvert’ chez Dalloz (with Antoine Lyon-Caen). Her books include Aspects économiques de droit international privé (2005); Common law et trad-ition civiliste (with Duncan Fairgrieve, 2006) (a pocket comparative study); Droit international privé (with Dominique Bureau, 2007, now in its 3rd edition, 2014), and a Que sais-je on the same subject (also with Dominique Bureau, 2009). She co-edited The Making of European Private Law: Regulatory Strategies and Governance (with Fabrizio Cafaggi, vol. I 2008, vol. II 2009). She is co-editor of Private Inter-national Law as Global Governance (with D. Fernandez Arroyo, 2014). Representative publications in article form include, ‘Private International Law Beyond the Schism’ in Transnational Legal Theory (2011); ‘Dette souveraine et main visible du marché: de nouveaux enjeux du droit international privé des contrats’ in Revue critique de droit international privé (2015); ‘Conflicts of Laws Unbounded: The Case for a

Legal-Pluralist Revival’ in Transnational Legal Theory (2016).

Pao

Paolo lo ParPardoledolesisi has a Ph.D in Comparative Private Law from the

University of Trento and was Official Visiting Researcher at Yale Law School. He is currently Associate Professor of Comparative Law at the University of Bari, Aldo Moro, Italy, and a lawyer enrolled in the Bari Bar Association.

Francesco Parisi

Francesco Parisi is the Oppenheimer Wolff and Donelly Professor of

Law at the University of Minnesota, Law School and a Professor of Economics at the University of Bologna, Department of Economics. From 2002 to 2006 he held a Chair in Private Law at the University of

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Milan (Statale), where he was appointed Professore Ordinario per Chiara Fama. From 1993 to 2006 he taught at George Mason University where he served as Professor of Law and Director of the Law and Economics programme, and as an Associate Director of the J.M. Buchanan Center for Political Economy.

Geoffrey Samuel

Geoffrey Samuel is Professor of Law at the Kent Law School,

Univer-sity of Kent, and a Professor affilié at the Sciences Po Law School. He holds doctorates from the universities of Cambridge and Maastricht and an honorary doctorate from the University of Nancy 2. His research interests are in the areas of comparative law theory, legal epistemology and the law of obligations. His most recent books are An Introduction to Comparative Law Theory and Method (Hart Publishing, 2014) and A Short Introduction to Judging and to Legal Reasoning (Edward Elgar Publishing, 2016).

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Introduction

Pier Giuseppe Monateri

Contract has never been more alive than nowadays and pervasively dominates world transactions. Notwithstanding its enduring presence and the complex apparatuses of technicians devoted to managing clauses and interpretation, the inquiry on the proper nature of contract, on its status and collocation within private legal taxonomies continues to be a controversial exercise. This comprehensive book, which collects the contribution of different scholars from different backgrounds, offers a thoughtful survey of theories, issues, cases, in order to reassess the present vision of contract law. The adjective ‘comparative’, prominent in the title, refers both to the specific kind of methodologies implied, and to the polyphonic perspectives collected on the main topics, with the aim of superseding the conventional forms of representation. In this perspective, the work engages a critical search for the fault-lines, which cross traditions of thought and globalized landscapes.

Moving from a vast array of dissimilar inclinations, which have historically produced heterogeneous maps of law along with protean representative aesthetics, the book is built around four main groups of insights, including: the genealogies of contractual theoretical thinking; the contentious relationship between private governance and normative regulations; the competing styles used to stage contract law, and the concurring opinions expressed within the domain of other disciplines, such as literature and political theory; the tensions between global context and local frames and the movable thresholds between canonical expressions and heterodox constructions.

Part I (‘Theories and Genealogies’) deals with fundamental epistemological issues and aims to dissect the underlying structure of the most accredited conceptual frameworks. How can we critically rebuild a theory of theorizing contract law as a separate field of law? How can we reassess the genealogy of contract law, managing the darker legacies embedded in Roman tradition? As it has been noted, despite the long history and the recent increase in theorizing about contract law, the nature and purpose of such theorizing remain under-discussed and many basic questions remain unanswered. Competing visions have framed the intellectual debate: autonomy theories have confronted property and

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reliance theories and from their impact, if not from their collision, a new creature, a hybridized form of scientific construction has taken shape. On a parallel level, the trans-historical and inter-cultural investigation paves the way to the possible corruption or contamination of the normative purity predicated to contract law by legal science. A deeper look reveals the quest for new taxonomies, for other schemes of intelligibility apt to valorize the specific role played by ‘contracticles’, namely by different types of transactions to be found at the lowest level of generality. In this perspective, a supplementary bulk of fragmented knowledge opens mean-ingful fissures within the body of systematized codes. The reflection on the actual morphology of contract rules also reveals the growing influ-ence of social justice in private law and uncovers the failures that can be ascribed to the liberal conceptions of classical legal thought. In the present context, an intriguing and illuminating exercise could be to explore the relationship between what would be called ‘traditional’ contract law and ‘regulatory contract law’. This is not a well-established topic in the comparative law literature and rouses broader and more systematic inquiries.

Part II (‘Market Values and Their Critiques: Private Governance and Normative Regulations’), developing the arguments introduced at the end of Part I, reports the most interesting positions on the relation between private governance and normative regulation. Once again, the issues of complexity and spontaneous order are under scrutiny, in order to pursue a strategic response to decisive questions, such as: how is it possible to maximize the satisfaction of the largest number of compatible goals in complex systems such as contemporary societies? How is it possible to secure an acceptable degree of certainty and to have efficient rules in order to achieve cooperation? On these premises, the contributors re-discover the various political representations of private autonomy and detect the key function fulfilled by the principle of ‘party autonomy’ within the political economy of private ordering in today’s global scenery. According to a skeptical view, it could be argued that even one of the most powerful creations of the legal science underlying classical legal thought, which lasted almost unchanged through the second global-ization of law, has now come to an end or, in any case, has been dramatically transformed. A critical perspective aims both to trace and dissect the epiphanies of this substantial crisis and to propose new re/de-constructive projects. Another important and closely related topic is the tense relationship between freedom of contract and judicial interven-tion on the agreement. In particular, the ‘jurispathic’ power asserted by national courts is scrutinized both in its theoretical foundations and in its operational way of functioning. The judicial creation of exceptions, of

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cases of contractual terms’ inapplicability, seems to construct a kind of supra-competence of the judiciary, enhancing a newfangled sovereign order, based on a hyperbolic claim.

Part III (‘Representations and Narratives’) stages a compelling por-traiture of the representational models, which have structured the multi-farious narratives on contract law. Law, literature and politics are here intersected in a fruitful interplay of mutual illuminations. The literary emplotment of legal traditions is disclosed with its inner strategic potentialities. A particular attention is reserved to the wavering shifts which have animated the American legal debate, from the assertive and dogmatic rise of a classical theory of contract to its fall and disintegration under the fierce attacks of legal realism. The unresolved alternation of order and crisis, stability and change, certainty and instability is captured and expressed by the means of the texts written by distinguished intellectuals. The polyphonic voices are juxtaposed and assembled; legal tradition is de- and re-composed through the accepted discourses and the prospective imaginations of scholars and judges, here presented as mindful ‘legal humanists’. In a corresponding way, literature comes to vivify the normative world in which a community lives: novels, poetry, fairy tales, dramas and other genres express aspirations and perceptions, evaluations and expectations. Law lives in literature and is questioned by literature. Prospecting an unavoidable bond, an inseparable relation between law and literature, the volume offers a bright ensemble of diachronic examples, which substantiate the literary lecture of contractual theories and rules from the Renaissance to the Victorian era, and also reproduce the deep quest engaged by postmodern compositions. The interdisciplinary approach allows us to disclose the inconsistencies of the contractual paradigm (the tenet according to which the social institution we are used to naming the ‘State’ has been established by means of a (social) ‘contract’), as one of the most appealing ideas in the history of modern and contemporary Western political thought. In fact, searching for the identification of who is entitled to sign the ‘srcinal’ contract, one could find that this abstract contractor is concretely personified and identifies as a male, white and Christian human being. The two most important requirements for a man to become such a full member are heterosexuality and able-bodiedness or ableness.

Part IV (‘Global Context and Local Frames’) focuses on the process by which global ideas, principles and institutions could eventually be reinterpreted through local frames of reference. Dealing with the main arguments introduced in Part I, in this renovated de-contextualization and

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re-contextualization framework, the theorization refers to a dis-embedding/re-localizing strategy. On this ground, the theoretical para-digms through which a contract may be read are previously identified in broader terms, emphasizing their essential characteristics and, subse-quently, are measured and operationally tested with regard to the specifi-cities of selected jurisdictions. An analogous exercise is meant to make clear the proper functioning both of doctrines and of remedies. Therefore, the doctrine of good faith is scrutinized according to its general scope and to the exceptional application made in recent decisions of US Courts. Analogously, Part IV presents a critical genealogy of promissory estop-pel, dwelling upon the sharp break from the traditional approach and the paradigm shift from the reasonableness of the conduct during the negotiations and moves in the direction of the obligation to act in good faith. A stimulating analysis, conducted through comparative methodol-ogies, probes the binomial technology/contracts and provides the observer with a comprehensive view of local responses to common universal problems and developments posed by use of technology in contracts.

Comparative Contract Law is intended to be an srcinal contribution to the ongoing elaboration of contractual theories and a contemplative effort to explore uncharted paths of inquiry at the intersection of different fields of research.

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PART I

CONTRACT LAW:

_{THEORIES AND}

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1. Theories of contract law

Brian H. Bix

INTRODUCTION

Theorizing about contract law has a long history – its srcins coincide with the srcins of thinking of about contract law as a separate area of law.1However, there has been a particular flourishing of work (at least in English) on contract theory in recent decades, prompted in large part by the publication of Charles Fried’s influential book, Contract as Promise2 (about which, more below). Despite the long history and recent increase in theorizing about contract law, the nature and purpose of such theoriz-ing remains under-discussed and many basic questions remain unanswered.

In this chapter, section I will discuss general considerations relating to theorizing about contract law, section II offers an overview of some major types of theories, and section III raises some of the skeptical challenges to theorizing in this area.

I. THEORIZING ABOUT CONTRACT LAW

A basic question about theories of contract law is, what is the nature and purpose of such a theory? Surprisingly, while there is a growing literature regarding which is the best theory of contract law, there is relatively little discussion of this foundational inquiry. At a basic level, a theory of a social practice could be descriptive (describing what is the case), prescriptive (making claims about how the practice should be organized

or how existing practices should be reformed), or interpretive (sometimes called ‘rational reconstruction’, this is a combination of description and prescription, where existing practices are reformed or at least re-characterized to make them better: more coherent, more legitimate, etc.). It is crucial to understand what sort of claim is being made for or

1 _{See Simpson (1981).}

2 _{See Fried (2015). The first edition of the book (published by Harvard}

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by a theory, though this is a matter that theorists (and their critics) too often leave undiscussed. Sometimes a theory and its critics are talking past one another: it is not a fair criticism of a purely prescriptive theory that it does not accurately describe current practices, and so on.

Additionally, we need to know something about a theory’s purported scope. Is the theory meant to be (at one end of the spectrum) about the contract law of a particular jurisdiction at a particular time, (at the other end of the spectrum) about all existing, past or possible contract law systems, or something in-between? For example, when Charles Fried offers a ‘theory of contract Law’,3is it a theory of American (or, perhaps, Anglo-American) contract law, a theory about (say) ‘American, English, and similar common law’ legal systems, or about all possible legal systems? Fried never makes that clear.4

In the different area of general theories about the nature of law, it is often reported that the theories are ‘conceptual’ – meaning that they are true of any existing or possible legal systems, that they describe simply and basically what must be true for something to be a legal system .5 Would it make sense to make comparable claims for a theory of contract law (or tort law or property law), that there are certain characteristics that must be true for something to be contract law? One could certainly imagine a functional-style theory of this sort, e.g., that ‘contract law’ is whatever set of legal remedies are made available for the enforcement of promises, exchanges and transactions.

At times the claims made regarding a doctrinal area of law are said to be ‘explanatory’, but in a way that is more abstract or metaphorical. When contract law is said to be ‘essentially about promise’ 6(or tort law to be ‘essentially about corrective justice’ 7), the theorist is usually not saying that every rule, principle and practice of this doctrinal area perfectly reflects that value, but more that this value pervades the practice and is the primary component of the practice’s justification.

One final line of questioning regards the data that grounds the theory: is the theory meant to explain or justify the outcome of particular cases or is the theory meant to operate at a more general level, e.g., explaining the rules or principles that cover whole categories of cases? To put the issue another way, when it is said on behalf of a theory on contract law that it ‘explains’ or ‘justifies’ contract law, what precisely within or about

3 Ibid.

4 _{See Bix (2012a).} 5 _{See, e.g., Raz (2005).} 6 _{See Fried (2015).}

7 _{See, e.g., Coleman (1992).}

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contract law is being explained or justified? The alternatives are perhaps more sharply differentiated in common law legal systems (like those of the United States and England), where (a) much of the contract law has developed from judicial decisions rather than being stated in or derived from a Code or other collection of statutes; and (b) the law continues to be developed (modified) by contemporary judicial decisions (which also bind lower courts and, generally, later decisions by the same court). At least in relation to common law legal systems, one can reasonably ask whether the ‘data points’ that the theory purports to explain are the particular case outcomes, or rather the ‘black-letter’ rules (and principles) that one may find in treatises, Restatements, and other summaries of the field (but which have no authoritative status in (most) legal systems).8

It has already been mentioned that one type of theorizing about contracts would involve ‘interpretive’ claims, also known as ‘rational reconstruction’. Interpretation/rational reconstruction has the advantage of being similar to what lawyers do in many legal systems while arguing a case: lawyers offer arguments that take into account relevant legal texts and past judicial decisions, trying to offer a coherent and principled justification of the whole area. In legal practice, this form of theorizing is

often part of advocating that the law be changed, filled in or clarified in a way that is advantageous to one side of a legal dispute. There is a robust argument that this is the best and most natural use for theories of doctrinal areas: to offer guidance to judges who need to decide novel questions of law (in a way that may also combine with the judges’ improvement of the legal rules).9

There are, of course, other kinds of theories of, or relating to, contract law, beyond those already mentioned. For example, Dagan and Heller have offered what could be thought of as a theory of contract law, though one that would be part of a larger moral or political theory, in that it focuses on how the state can and should use contract law to promote a good (and autonomous) life for its citizens. 10 There is also, of course (and as already mentioned), room for purely prescriptive theories, sug-gesting what the ideal set of contract rules and principles would be (in general, or for a particular country).

As already noted, it may be instructive to compare theories about doctrinal areas of law with the perhaps better established and more widely known and discussed theories about the nature of law – the type

8 _{See Kraus (2007).} 9 _{See Moore (2000).} 10 _{Dagan and Heller (2013).}

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of theory one finds in general jurisprudential discussions, and the works of theorists like H.L.A. Hart, Hans Kelsen, Ronald Dworkin and John Finnis.11 There are parallel questions regarding whether the claims of these sorts of theories should be understood to be descriptive, interpretive or conceptual, and whether it makes sense to speak of a general or universal theory. One difference is that it may be sensible and valuable to have a parochial theory of contract law (e.g., a theory of German, or French, or American contract law) in a way that a ‘(general) theory of German, or French, or American law’ would likely seem less sensible and useful.

There are obvious connections between the topic of this volume, ‘comparative contract law’, and the issues surrounding theorizing about contract law. ‘Comparative contract law’ starts by assuming something like the following: that there is a general category, ‘contract law’, such that there are examples of that category in many, and perhaps all, legal systems. And once one concludes (or assumes) that there are examples of ‘contract law’ in most, and perhaps all, legal systems, then it seems sensible, or at least possible, to have a theory of what all (actual, or perhaps actual and possible ) members of that category (‘contract law’) have in common.

Additionally, it might be said that one needs to have at least an intuitive sense of the nature and boundary lines of the category ‘contract law’ in order to do comparative contract law. One must know what to include and to exclude in comparing one legal system with another: for example, does comparative contract law extend to a country’s legal rules regarding pension obligations? Landlord-tenant rules? Mandatory terms for insurance policies? Requirements for separation agreements? Stand-ards for when charitable pledges are enforceable? And so on.

While having a category of ‘contract law’ gives one a subject for theorizing, it still of course leaves open the question of whether anything interesting can be said about that category, and also what are the nature of claims being made within the theory. As already noted, a theory of contract law could be making descriptive claims about what is true about all the contract law systems one knows, or it could be making a conceptual claim about what must be true of all contract law systems, about what makes something a contract law system as opposed to something else. (There is, inevitably, a certain amount of circularity in the conceptual inquiry: if one is trying to determine what makes

11 _{See, e.g., Hart (2012); Kelsen (1997); Dworkin (1986); Finnis (2011); see}

also Raz (2005).

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something ‘contract law’ as opposed to something else, one will look at all examples of what one calls ‘contract law’, to see what distinguishes them from other things, e.g., legal rules of tort or restitution, or moral rules about keeping promises. There is thus a certain ‘reflective equilib-rium’ between conventional or intuitive views about what fits into a category, and potential theoretical views about what makes up the boundary lines of the category.)

The next section considers some prominent examples of contract law theories.

II. CURRENT THEORIES

A.

A. AAutoutonomy nomy TheoTheorieriess

This is a broad category that could include not only the will theories of contract that were popular in continental Europe in the nineteenth century,12but also more recent examples, like Charles Fried’s promissory theory13 and Randy Barnett’s consent theory.14 These all qualify as ‘autonomy theories’ because they tend to focus on the choice of (potential) contracting parties, and the importance of respecting and enforcing such choices. The whole ideal of ‘freedom of contract’ (and its cognate, ‘freedom from contract’) is that contract law is distinctive (relative both to public law and many other parts of private law) in giving individuals significant power to choose which duties will bind them: in principle, one chooses whether one enters any contracts at all, and the terms of the contracts one does enter. And there is another tie to autonomy: contractual partners are able to create legally enforceable rights and obligations to help them achieve objectives it would be difficult to achieve without legal enforcement of those commitments.15

The most influential modern autonomy theory is probably the promis-sory theory. The impetus for a promispromis-sory theory of contract law is the likely connection between the generally accepted moral obligation to keep promises and the legal enforcement of contracts. However, there are theorists who have questioned the connection between promises and contracts;16 and, in any event, in almost all legal systems, a significant

12 _{Gordley (1991).} 13 _{Fried (2015).}

14 _{See, e.g., Barnett (1986); Barnett (2012).} 15 _{Kraus (2009).}

16 _{See, e.g., Pratt (2008); Shiffrin (2012).}

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portion of promises are not legally enforceable (in common law systems, generally only promises that are part of an exchange are enforceable; in many civil law systems, there is a requirement that promises be suffi-ciently important before they are enforced). The fact that not all promises are enforced, and that courts often focus only on whether a party has sufficiently outwardly/publicly consented to the legal duties in question, has motivated the competing ‘consent’ theory of contract law.17

B.

B. PropProperterty y TheTheoriorieses

Theories like Peter Benson’s theory of contract law posit that a contract involves a transfer of a property right, or something like a property right, at the time the contract is entered. 18The advantage of this approach is that it justifies the rule in many jurisdictions that in the case of a breach, the non-breaching party has the right to full performance, or its economic equivalent, even if the breach occurred so early that the non-breaching party has not suffered any harm from the breach and has not relied on the contract in any significant way.

On one hand, while the assertion that some sort of entitlement passes between the contracting parties at the time the agreement is entered does justify certain doctrinal outcomes, it seems to do this by assuming what is to be proven. Perhaps more problematic: to claim that one party has an entitlement or property right against the other leaves open many of the intricate questions a working contract law system must answer regarding the contours of that right, e.g., when does the party have the right that a court order the other party to perform , and in the case of money damages, how are damages to be measured, and what are the limits of what can be recovered (e.g., in US contract law, there are limitations based on causation, foreseeability, mitigation and certainty)? The asser-tion that one has a property-like contractual right would only open the inquiry on such questions, and would seem to leave a great deal still to do before the questions are resolved.

C.

C. ReRelilianance ce ThTheoeoririeses

Some theorists have noted that while the doctrinal rules in some legal systems may allow the recovery of significant damages for breach of contract at any point after the contract has been entered (as mentioned in the previous section), in practice parties may not expect to recover

17 _{See Barnett (1986); Barnett (2012).} 18 _{Benson (2001); Benson (2007).}

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damages, and courts may be reluctant to award damages, unless the non-breaching party can prove that the breach caused significant damage (e.g., because of the non-breaching party’s reasonable reliance on the contract). It is additionally argued that, in any event, the moral claim for damages is strongest when there has been such reliance, and weak when no such detrimental reliance has occurred. 19 This line of argument has sometimes been thought to make up a reliance theory of contract law, and some theorists have strongly urged a focus on (reasonable) reliance, though it is hard to find fully-worked-out theories of contract law along these lines.20 In any event, any theory that purports to ground the rights party do (or should) have on their reliance, will need also to have a theory regarding when such reliance is reasonable, and that will in turn require some reference to other values (promise? consent? efficiency?).

D.

D. GeneGeneral ral TheoTheoriesries, wit, with h ApAppliplicatcation tion to Conto Contract ract LawLaw

Along with theories aimed particularly at contract law, there are also forms of legal theory whose scope is broader, but the scope includes an application to contract law.

The most influential such general theory (at least in the United States) is ‘law and economics’. Speaking in very rough terms, law and eco-nomics involves the application of various resources of economic thought to the understanding of legal rules, practices and institutions, and argues that legal norms generally do, and generally should, promote economic efficiency. A large number of theorists have used economic analysis as a way to explain current contract law doctrine or to prescribe changes in the current contract law rules (within a particular legal system, though prescriptions may also range more broadly across legal systems).21

One advantage the economic analysis of law has over other (mostly ‘deontological’) approaches to contract law is that economic analysis has the resources to make recommendations regarding detailed contract law rules and principles (e.g., when in a breach of contract case should a non-breaching party be granted ‘specific performance’ as opposed to being confined to money damages? When should damages in a breach of a construction contract case be measured in terms of ‘cost of completion’ as against ‘diminution of value’? And when should a seller have a contract law obligation to disclose information?). A general reference to

19 _{See, e.g., Fuller and Perdue (1936–1937).}

20 _{The usual names here are Patrick Atiyah, e.g., Atiyah (1979) and Grant}

Gilmore, e.g., Gilmore (1974).

21 _{See, e.g., Posner (2011); Kronman and Posner (1979); Craswell (1989).}

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‘autonomy’, ‘fairness’, ‘corrective justice’ or ‘property’ is unlikely to offer much guidance, while economically focused theorists at least purport to have recommendations on most detailed questions, based on efficiency.22

There are other comparably general theories with potential application to contract law: e.g., utilitarian moral theories,23 Marxist and other critical theories,24 feminist theories,25 and so on, with examples of such applications in the notes.

E.

E. MiMixexed d ThTheoeoririeses

As there are arguments in favor of a variety of approaches, it is not surprising that some theorists have argued for a theory of contract law that combines different approaches: in particular, combining autonomy and consequentialism (law and economics). 26 The difficulty with such mixed theories is they require the theorist to offer a meta-theory that can ground which justifications go to which part of the theory, or regarding what the priority will be among the theory’s justifications if and when they conflict.

III. DOUBTS ABOUT THEORIES

There are theorists who have expressed skepticism about the possibility or value of any general theory of contract law. This skepticism has been grounded on a number of grounds, some of which are detailed below.

A.

A. BaBasisic c TTasaskk

Contract law is a sub-category of law, and some of the same difficulties that come with theorizing about law apply to theorizing about contract law. In general, there are complications inherent in the task of offering a theory of an ongoing social practice. Social practices change over time, and vary from place to place. They are human creations, not defined by chemical composition or species category the way ‘natural kinds’ are. There are reasons to doubt that there is a stable category, ‘contract law’,

22 _{See Craswell (1989).} 23 _{See, e.g., Cohen (1933).}

24 _{Unger (1986); Feinman and Gabel (1990).} 25 _{See, e.g., Frug (1985).}

26 _{See, e.g., Kraus (2001); Kraus (2002).}

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to offer theories about, and also reasons to doubt that there is anything valuable that could be said at a descriptive, analytical or conceptual level about contract law (even skeptics would allow for the option of a purely prescriptive theory of contract law, arguing for what would be the best contract law system for a particular country).

B.

B. PlPlururalalisismm

A number of theorists have rejected theories of contract law on the basis that it is mistaken or misleading to point to a single ‘essence’ or ‘nature’ of contract law, because, the argument goes, contract law serves a variety of goods. For example, in most legal systems, there are numerous limits to autonomy (‘freedom of contract’): one can be held to contractual terms even if one did not know about or fully understand them, and there are categories of terms that will not be enforced (e.g., on public policy grounds) even if the parties consented to them with full knowledge. Contract law systems generally include mandatory rules, default rules and rules of interpretation which may frequently serve interests other than respecting party choice (e.g., values of general fairness, protecting vulnerable parties and expressing different public policies on particular issues). And similar counter-examples can be raised to other alleged ‘essential’ values for contract law. Indeed, one might see the range of different essentialist or prescriptive theories as themselves giving proof of the variety of values that contract law can and should promote: e.g., while Ian Macneil famously argued that contract law does and should promote long-term relationships,27 other writers have emphasized the way that contract law does (and should) facilitate cooperation between those who have been, and will remain, strangers.28The obvious response is that some types of contracts are primarily about supporting long-term relationships, and some types of contracts are primarily about facilitating short-term cooperation among strangers; contract law does and should promote these quite different values, and many other values as well.

C.

C. VVarariaiatitionon

The challenge of variety responds to the (express or implicit) scope of contract law theories that purport to be general, universal or conceptual. The argument is that the rules, principles and practices of contract law are sufficiently diverse over time, across jurisdictions, or even across

27 _{See Macneil and Campbell (2001).} 28 _{See, e.g., Kimel (2003).}

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transaction types within a single jurisdiction, that no single theory can capture the whole range of contract law without either being so general, or so cumbersome and detailed, as to be of little value as a theory.

For example, the analysis goes, across jurisdictions some contract law systems protect ‘naked promises’ (promises made without any return promise, and without any detrimental reliance upon the promise) and some do not; some jurisdictions prefer the remedy of ‘specific perform-ance’ (a court order that a party perform what it promised) for breach of contract, while others do not; some jurisdictions allow awards of ex-emplary (punitive) damages or damages for pain and suffering and emotional distress while others do not, and so on.

Some theorists have argued that we should favor theories of contract law that are general (at least within a single legal system) because reinforcing common contract law principles may prevent the rules and principles covering particular transaction types from being ‘captured’ by the interests and values of powerful groups (e.g., lawyers and lobbyists for insurance companies determining the law of insurance policies, or large businesses similarly determining the rules for consumer and employment contracts).29 However, there is also a concern sometimes expressed in the other direction: that the talk of a single essence to contract law, especially when this is part of legal education or part of a public image of contracts that presents them as paradigmatically involv-ing two parties of equal bargaininvolv-ing power and sophistication negotiatinvolv-ing terms at arm’s length, may be a way to hide (to legitimate) the real injustices and inequalities of contracting practices.30

D

D. . SSuummmmaarryy

The debate between advocates of contract law theories and skeptics often seems to be primarily one of emphasis. For example, those favoring having a general theory of contract law will usually concede that there is significant variety across transaction types and across jurisdictions and that there are some rules and practices that do not fit neatly under a single rubric, but they urge that what is common and constant across contract law(s) is more important than what varies. From the other direction, skeptics of contract law theory do not deny that there are common principles, rules and themes across transaction types and across jurisdictions, likely based on shared intuitions about keeping promises

29 _{See Oman (2005).} 30 _{Bix (2012b).}

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and the regulation of transactions, but argue that what is common is less important than what differs.31

CONCLUSION

The area of contract law theory remains largely unformed and unsettled. Those offering such theories often ignore basic methodological questions regarding what such theories are meant to accomplish and what the criteria are for success. Two likely models for such contract law theories are to see them as efforts to ‘explain’ contract law, or to ‘rationally reconstruct’ its rules and principles. There remain issues as to whether such theories should be seen as covering all existing, past and possible contract law systems, or only contract law systems of the theorist’s home nation and perhaps comparable current systems. Those who challenge the possibility or value of contract law theories tend to emphasize the wide variety of rules, remedies and practices across jurisdictions, over time, and even across transaction types within a particular jurisdiction. Chal-lenges may also focus on the plurality of goods that contract law rules and practices promote, arguing that contract law theories that focus on only one value inevitably distort the underlying contract law system too much to be useful.

REFERENCES

Atiyah, P. (1979) The Rise and Fall of Freedom of Contract . Oxford: Oxford University

Press

Barnett, R. (1986) ‘A Consent Theory of Contract’, 86 Columbia Law Review 269–321

Barnett, R. (2012) ‘Contract is Not Promise; Contract is Consent’, 45 Suffolk University

Law Review 647–65

Benson, P. (2001) ‘The Unity of Contract Law’ in P. Benson (ed.), The Theory of Contract

Law: New Essays. Cambridge: Cambridge University Press, 118–205

Benson, P. (2007) ‘Contract as a Transfer of Ownership’, 48 William and Mary Law

Review 1673–731

Bix, B.H. (2012a) ‘Theories of Contract Law and Enforcing Promissory Morality:

Comments on Charles Fried’, 45 Suffolk Law Review 719–24

Bix, B.H. (2012b) Contract Law: Rules, Theory, and Context . Cambridge: Cambridge

University Press

Cohen, M. (1933) ‘The Basis of Contract Law’, 46 Harvard Law Review 553

Coleman, J.L. (1992) Risks and Wrongs. Cambridge: Cambridge University Press

31 Cf. ibid._{at 128–62 (arguing against contract theory) with Oman (2005)}

(arguing for a general contract theory).

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Craswell, R. (1989) ‘Contract Law, Default Rules, and the Philosophy of Promising’ 88

Michigan Law Review 489

Dagan, H. and Heller, M.A. (2013) Freedom of Contracts, available at http://papers.

ssrn.com/sol3/papers.cfm?abstract_id=2325254

Dworkin, R. (1986) Law’s Empire. Cambridge, MA: Harvard University Press

Feinman, J.M. and Gabel, P. (1990) ‘Contract Law as Ideology’ in D. Kairys (ed.), The

Politics of Law: A Progressive Critique. New York: Pantheon Books, 373–92

Finnis, J. (2011) Natural Law and Natural Rights. Oxford: Oxford University Press, 2nd

edn

Fried, C. (2015) Contract as Promise. Oxford: Oxford University Press, 2nd edn

Frug, M.J. (1985) ‘Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook’, 34 American University Law Review 1065

Fuller, L.L. and Perdue, W.R., Jr. (1936–1937) ‘The Reliance Interest in Contract

Damages: Parts I and II’, 46 Yale Law Journal 52–96; 373–420

Gilmore, G. (1974) The Death of Contract . Columbus, OH: Ohio State University Press

Gordley, J. (1991) The Philosophical Origins of Modern Contract Doctrine. Oxford:

Clarendon Press

Hart, H.L.A. (2012) The Concept of Law. Oxford: Oxford University Press, 3rd edn

Kelsen, H. (1997) Introductions to the Problems of Legal Theory (Bonnie Litschewski

Paulson and Stanley Paulson (trans.)). Oxford: Oxford University Press

Kimel, D. (2003) From Promise to Contract: Towards a Liberal Theory of Contract .

Oxford: Hart Publishing

Kraus, J.S. (2001) ‘Reconciling Autonomy and Efficiency in Contract Law: The Vertical

Integration Strategy’ in E. Sosa and E. Villanueva (eds), Philosophical Issues: Social,

Political and Legal Philosophy. Oxford: Basil Blackwell, vol. 11, 420–41

Kraus, J.S. (2002) ‘Legal Theory and Contract Law: Groundwork for the Reconciliatio n of

Autonomy and Efficiency’ in E. Villanueva (ed.), Social, Political and Legal Philosophy,

vol. 1, Legal and Political Philosophy. Amsterdam: Rodopi, 385–445

Kraus, J.S. (2007) ‘Transparency and Determinacy in Common Law Adjudication: A

Philosophical Defense of Explanatory Economic Analysis’, 93 Virginia Law Review

287–359

Kraus, J.S. (2009) ‘Personal Sovereignty and Normative Power Skepticism’, 109 Columbia

Law Review Sidebar 126–34

Kronman, A.T. and Posner, R.A. (eds) (1979) The Economics of Contract Law. Boston,

MA: Little Brown

Macneil, I. and Campbell, D. (2001) The Relational Theory of Contract: Selected Works of

Ian Macneil. London: Sweet & Maxwell

Moore, M.S. (2000) ‘Theories of Areas of Law’, 37 San Diego Law Review 731–42

Oman, N.B. (2005) ‘Unity and Pluralism in Contract Law’, 103 Michigan Law Review

1483–506

Pollock, F. (1885) Principles of Contract , London: Stevens and Sons

Posner, R.A. (2011) Economic Analysis of Law. New York: Aspen Publishers, 8th edn

Pratt, M. (2008) ‘Contract: Not Promise’, 35 Florida State University Law Review 801–16

Raz, J. (2005) ‘Can There be a Theory of Law?’ in Martin P. Golding and William A.

Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory .

Oxford: Blackwell Publishing, 324–42

Shiffrin, S.V. (2012) ‘Is a Contract a Promise’ in A. Marmor (ed.), The Routledge

Companion to Philosophy of Law. London: Routledge, 241–57

Simpson, A.W.B. (1981) ‘The Rise and Fall of the Legal Treatise: Legal Principles and the

Forms of Legal Literature’, 47 University of Chicago Law Review 632–79

Unger, R.M. (1986) The Critical Legal Studies Movement . Cambridge, MA: Harvard

University Press

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2. In defense of Roman contract law

James Gordley

Even those who understand and admire Roman contract law think that modern contract law is a great improvement. As has often been said, in contrast to the Romans, who had a law of particular contracts, we have a general contract law reflecting general principles. One principle is that contracts are binding upon consent, although there are exceptions such as the common law rules on consideration and the civil law requirement that certain contracts be notarized. Another principle is that the parties are bound to the terms to which they expressly agreed and, if their agreement is silent, to the terms on which they would have agreed had they given the matter thought. A third is that when one party fails to perform, the aggrieved party should receive a remedy that places him where he would have been had the performance been forthcoming.

As I have described elsewhere, Roman law was first given a systematic structure based on general principles by a group of jurists who worked in the sixteenth and seventeenth centuries and are known to historians as the Spanish natural law school or the late scholastics. They synthesized Roman law with the moral philosophy of their intellectual heroes, Aristotle and Thomas Aquinas. Many of their conclusions were borrowed by the seventeenth century founders of the northern natural law school, Hugo Grotius and Samuel Pufendorf, paradoxically, at the very time when the Aristotelian philosophy on which these conclusions had been based was falling into disfavor. In the nineteenth century, the doctrinal structure was reworked by jurists we remember as will theorists. Their innovation was not to recognize the importance of the concept of will but, in A.W.B. Simpson’s words, to treat the concept as a sort of Grundnorm from which as many rules of contract law as possible were to be derived. The three principles just mentioned emerged from the work of the late scholastics as modified by that of the will theorists.

Elsewhere I have discussed the difference between the work of the late scholastics and of the will theorists and its implications for modern law. Here I will discuss some aspects of Roman contract law for which the systematizers had no use. The late scholastics found no theoretical justification for them and so dismissed them as matters of Roman

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which modern law had outgrown, an opinion widely held today. I believe that the work of systematizing Roman law was a great achievement. Nevertheless, I will argue that these features were dismissed too quickly.

I. WHEN CONTRACTS ARE BINDING

As has often been said, the Romans did not have a general contract law but a law of particular contracts. They began to use the term ‘contract’ at a comparatively late date, after most of the rules governing particular contracts had been settled. Gaius was the first to distinguish the general classes of obligations contractus and delictus.1 The distinction is similar to one that Aristotle drew between involuntary and voluntary commuta-tive justice. Modern scholars believe that Gaius took it directly or indirectly from Aristotle.2 In any event, Gaius did not discuss its implications. Having drawn this distinction, he immediately turned to the rules that governed particular torts and contracts of Roman law. As Alan Watson observed, for the Roman jurists:

Each individual type of contract, such as stipulation, loan for use, or loan for consumption, sale, hire, or mandate, remains intact with its own sui generis body of rules … [F]or a Roman jurist it was unthinkable … to write a commentary on the law of contracts or even on the law of a group of contracts, such as consensual contracts. The same is equally true of other fields, for instance of delicts.3

Some of these rules concerned when an agreement between the parties became binding. Although the Roman jurists recognized that the parties must consent for any contract to be binding, only some contracts, the ‘consensual’ contracts or contracts consensu, were binding by consent alone. Gaius mentioned sale, lease (or hire), partnership and mandate, which is a kind of gratuitous agency.4 Others, the ‘real contracts’ (contracts re) were binding when an object was actually delivered, for example, loans for use or for consumption, and deposit, all of which were gratuitous. Other contracts were binding upon the execution of a formal-ity. The all-purpose formality was stipulatio, which was srcinally oral although eventually a writing could be used to prove that a stipulatio had

1 _{G. 3.88.}

2 _{See Zimmermann (1990) 10–11; Kaser (1959) 522; Honoré (1962) 100;}

Coing (1952) 59.

3 _{Watson (1995) 170.} 4 _{G. III. 135.}

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been made. One party would ask the other, ‘Do you promise such and such?’ and the other would answer that he did. For each party to be bound, each party would make a stipulatio in which his obligation was conditional on the other party’s fulfillment of his own. Eventually, a special formality, insinuatio, was required for the promises of gifts. The promise had to be officially registered. Finally, there were ‘innominate’ contracts, contracts ‘without names’, that were not enforceable before performance. An example was barter.

A.

A. RejRejectectioion of n of ththe Roe Roman man DiDiststininctctioionsns

Although some medieval jurists expressed surprise that barter, unlike sale, was not binding upon consent,5the attack on the Roman distinctions among contracts began with the late scholastics. Luis de Molina thought that the Roman distinctions were wrong in principle. In a barter, ownership was transferred when the objects exchanged were actually delivered. Molina saw no reason why, if the parties so intended, they could not transfer upon consent the right to demand delivery. A court should ascertain their intent by examining the ‘circumstances’. 6 Molina concluded that ‘everything, indeed, concerning … innominate and innominate contracts that was invented and introduced by the pagans more subtly than usefully should be abolished’.7 His contemporary Leonard Lessius agreed that the Roman distinction had no principled justification, but for a different reason. He claimed that Molina had failed

to recognize that promises are binding simply because they are promises and not because of the precise intention with which they are made. A promise was a commitment to do something, not a mere statement about what one would do. Therefore every promise gave rise to an obligation.8 A promise to give one object in exchange for another was therefore binding without any need to inquire into the circumstances.

In the seventeenth and eighteenth centuries, these arguments were repeated by the leaders of the northern natural law school, Hugo Grotius, Samuel Pufendorf and Jean Barbeyrac. Grotius and Barbeyrac made the argument of Molina. ‘Why’, Grotius asked, ‘may there not be transferred a right in personam either that ownership be transferred or that something 5 _{See, e.g., Iacobus de Ravanis,} _{Lectura Super Codice}_{to C. 4.64.3 (1519);}

repr. Opera iuridica rariora, vol. 1 (1967) (published under the name of Petrus de Bellipertica: on authoriship, see Meijers (1959) 72–77.

6 _{Molina (1614) disp. 262.} 7 Ibid._{disp. 258.}

8 _{Lessius (1628).}

1849804516

Comparative Contract Law

Edited by

Pier Giuseppe Monateri

Professor of Comparative Law, Department of Law,

University of Turin, Italy

Contents

Contributors

Introduction

Pier Giuseppe Monateri

PART I

CONTRACT LAW:

THEORIES AND

1. Theories of contract law

Brian H. Bix

INTRODUCTION

I. THEORIZING ABOUT CONTRACT LAW

II. CURRENT THEORIES

III. DOUBTS ABOUT THEORIES

CONCLUSION

REFERENCES

2. In defense of Roman contract law

James Gordley

I. WHEN CONTRACTS ARE BINDING

_{THEORIES AND}