‘A Compelling Case for a General Theory of Contracts’

Robin Kar, Contract as Empowerment, 83 University of Chicago Law Review 759 (2016). Contract in the common law lacks a unifying theory. In this article, Robin Kar offers an intriguing descriptive and normative theory of ‘contract as empowerment’ to explain and harmonize the relationships of core contract doctrines such as consideration, the expectancy damage default rule, and fairness rules such as unconscionability. The result is a highly coherent, aesthetically pleasing, and jurisprudentially compelling account of contract that sets the stage for what promises to be an important scholarly project. Typically, I read articles propounding new general theories of contract with a jaundiced eye. Contract law has long resisted a true general theory because the body of what Kar refers to as ‘true contract’ – eg, excluding other theories of obligation such as promissory estoppel and restitution – suffers from a schizophrenia that extolls private autonomy on the one hand while demanding deference to communitarian interests on the other … (more)

[Daniel Barnhizer, JOTWELL, 14 December]

First posted 2017-12-15 08:00:34

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