‘Is Equitable Contract Law a Pipe Dream?’

“At last month’s American Law and Economics Annual Meeting, I attended a very interesting session on Commercial Law and Contracts, at which the first two papers were in tension with each, as were their authors – in a polite way! The first was ‘The Common Law of Contract and the Default Rule Project’, by Alan Schwartz and Bob Scott. They argue that the program over the last century by academics, codifiers, and Restaters (‘drafters’) to supply transcontextual defaults rules that apply in a wide variety of contracts was doomed to fail. Common law contract supplied a limited number of defaults that do have this feature, such as expectations damages for breach of contract. Going beyond these traditional rules faced the drafters with a dilemma. They did not have knowledge enough to supply defaults that would make sense for particular industries …” (more)

[Henry Smith, New Private Law, 9 June]

First posted 2016-06-10 06:16:54

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