By Peter Benson
Even supposing the legislation of agreement is basically settled, there's at the present no widely-accepted finished conception of its major ideas and doctrines or of its normative foundation. This selection of six full-length and unique essays, written by means of probably the most eminent students within the box, explores the overall concept of agreement legislations from various theoretical views. whereas the essays construct on earlier theoretical contributions, additionally they try to take agreement idea extra and recommend new and promising how one can boost thought of agreement legislation.
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Additional info for The Theory of Contract Law: New Essays
20 Clearly, making A's promise enforceable will increase B's incentive to rely in one respect, since enforceability will usually increase the probability that A will perform (thereby reducing the probability that B will be left in the lurch). But the exact effect on #'s reliance incentives may depend not only on enforceability vel non, but also on the exact nature of the enforceability, including the measure of damages B will collect if A fails to perform. ), he will clearly have more of an incentive to rely than if A's promise is "enforceable" but B is guaranteed only some token payment in compensation.
M. Rosenfield, "Impossibility and Related Doctrines in Contract Law: An Economic Analysis" (1977), 6 J. Legal Stud. 83. 10. A. 11. Note that, since we are talking about rules to be followed by courts and other legal decisionmakers, many of the usual objections to rule-utilitarianism do not apply. For a further discussion of this point, see C. Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge, MA: Harvard University Press, 1981), 16. 26 RICHARD CRASWELL performance. "12 Indeed, such a rule might at least roughly approximate the current legal defenses, which excuse a nonperforming party not whenever performance seems inefficient, but only in cases of extreme impracticability or frustration of purpose.
Similarly, it can still be argued that this presumption should be reversed in the case of promises induced by fraud or duress, on the ground that it can no longer be presumed that the incentives created by the promise must have been efficient. Thus, although the earlier quotation from Richard Posner questioned whether performance should be presumed to be ef34. For two (very different) recent statements of this view, see Barnett, supra note 7, at 291-300; and Peter Benson, "The Unity of Contract Law" (elsewhere in this book).