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Contractual Relations: A Contribution to the Critique of the Classical Law of Contract

ISBN13: 9780198855156
Published: September 2022
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £95.00

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Written by one of the leading contributors to the relational theory of contract, Contractual Relations authoritatively explains the form of the existing law of contract by relating it to its economic, legal, and sociological foundations.

This volume demonstrates that economic exchange and legal contract rest on a moral relationship by which each party legitimately pursues its self-interest through recognition of the self-interest of the author. This essential relationship of mutual recognition is in stark contrast to the pursuit of solipsistic self-interest that is central to the classical law of contract. Self-interest of this sort is not morally defensible, nor does it enhance economic welfare. It is for these reasons that the classical law is legally incoherent. The fundamental inadequacies of the classical law's treatment of agreement, consideration, and remedy have emerged as the doctrines of the positive law of contract have been progressively developed to give effect to the relationship of mutual recognition.

The welfarist criticism of the classical law has, however, failed to develop a workable concept of self-interest, and so is at odds with what must be retained from the classical law's facilitation of economic exchange and the market economy. The relational law of contract restates self-interest in a morally, economically, and legally attractive manner as the foundation of the social market economy of liberal socialism.

Contractual Relations is a fundamental critique of the classical law of contract and the welfarist response to the classical law, and an important statement of the relational theory of contract. This is a thoughtful and essential work for academics and research students in law, economics, and sociology.

Contract Law, Jurisprudence
Part 1: Introduction: Economic Exchange and Legal Contract
1:Choice, Mutual Advantage in Exchange, and Freedom of Contract
2:Exchange, Relational Contract, and Mutual Recognition
Part 2: The Relational Constitution of the Law of Contract
3:The Relational Constitution of Agreement (1): From Caveat Emptor to Caveat Venditor
4:The Relational Constitution of Agreement (2): Business Efficacy and Good Faith
5:The Relational Constitution of Bargain (1): Formalism, Substance and Good Faith in Consideration
6:The Relational Constitution of Bargain (2): Procedure and Fairness in Consideration
7:The Relational Constitution of Bargain (3): Fairness in Legislation and Common Law
8:The Relational Constitution of Remedy (1): Performance and Expectation
9:The Relational Constitution of Remedy (2): Literal Enforcement as a Substitute for Damages
10:The Spectrum of Contracts: Presentiation and Adjustment
Part 3: Conclusion: The Nature of Economic Action and the Nature of the Law of Contract
11:Absolute Knowledge of the Law of Contract
12:The Maximalist Welfare State, Inchoate Communism, and Betterment