Uri Benoliel, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, Brooklyn Law Review (forthcoming), available at SSRN. The use of theoretical economics to analyze legal rules faces a special challenge in contract law, particularly when applied to default rules rather than mandatory ones: it has to match up with what contracting parties are actually doing. One of the foundations of the economic analysis of contract law is that business parties ordinarily know what’s in their own best interests, so economic prescriptions about default, gap-filling rules are also ordinarily predictions: they are statements of what parties actually wanted but didn’t express or what they would have wanted if they had thought about a particular problem in advance … (more)
[Shawn Bayern, JOTWELL, 5 June]
First posted 2019-06-05 12:19:19
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