Rebecca Stone, ‘Putting Freedom of Contract in its Place’, 16 Journal of Legal Analysis 94, available at Oxford Academic (30 July 2024). A few years ago, Jody Kraus and Robert Scott argued that vindicating the sovereignty of parties who make contracts under free and fair conditions is ‘the most morally compelling explanation’ for contract law’s allegiance to the parties’ ex ante intentions. They further claimed that judicial interventions on behalf of justice via ex post doctrines are thus erroneous and ‘cannot be justified’. Rebecca Stone refutes both points in her brilliant piece, ‘Putting Freedom of Contract in its Place’. She first contests the claim that morality is secured by the procedure of contracting under free and fair conditions. She then turns to disprove the claim that judicial ex post interventions ‘cannot be justified’ by offering a powerful argument for setting limits on parties’ ability to control their relationship. Stone’s article puts freedom of contract in its place by no less than crafting a novel account of contract law – one called ‘the democratic conception’ … (more)
[Hila Keren, JOTWELL, 29 May 2025]
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