Rethinking Contract Law and Contract Design


Rethinking Contract Law and Contract Design

9781783471539 Edward Elgar Publishing
Victor P. Goldberg, Jerome L. Greene Professor Emeritus of Transactional Law, Columbia University, US
Publication Date: 2015 ISBN: 978 1 78347 153 9 Extent: 304 pp
Rethinking Contract Law and Contract Design presents a rich array of ideas that reassess the law and economics of contractual relations. Victor P. Goldberg uses a transactional framework to critically analyse and re-evaluate contract doctrine and specific legal cases. This important work examines particular contractual precepts whilst conducting a detailed exercise in legal archaeology, challenging readers to reconsider significant legal decisions by forensic exploration of records, briefs, and other materials, including the staple cases of textbooks and casebooks.

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Contract law allows parties to set their own rules within constraints. It provides a set of default rules and if the parties do not like them, they can change them. Rethinking Contract Law and Contract Design explores various long-standing contract doctrines, casting them in a new and compelling light by focusing on the economics of contractual relations.

Building upon and extending the arguments set forth in his acclaimed book Framing Contract Law, Goldberg revisits many of the seminal contract cases and places those decisions under close scrutiny, challenging readers, by means of forensic exploration of records, briefs, and other materials, to reconsider their conclusions. Split into four parts, the author examines direct damages, consequential damages, the excuses doctrines (including impossibility, impracticability and frustration), and offer and acceptance.

Asking the questions that often go unasked, and challenging the assumptions silently accepted by the majority, one of Goldberg’s many insightful observations, and an underlying thread to the book, is that achieving an economic understanding of contract design will illuminate both contract doctrine and contract interpretation.

Written with clarity and poise, Rethinking Contract Law and Contract Design is set to ignite plenty of debate amongst contract scholars and contract drafters, and provides the anvil upon which future generations of contract thinking can be forged. Contract scholars and students interested in exploring new perspectives on the topic will find this to be an essential read, as will contract lawyers and judges.
Critical Acclaim
‘The virtues of Rethinking Contract Law and Contract Design include this erudite level of detail, rich conceptual background and the persuasive critique of inefficient contract doctrine and drafting practices.’
– David Orozco, Journal of Strategic Contracting and Negotiation

‘In this volume, Victor Goldberg reassesses a collection of key contract law doctrines, largely through original economic analyses of well-known cases involving sophisticated parties. The results are thoughtful and provocative. They leave the impression that the law might produce more efficient consequences if contractual liability were more restrictive. Contracts teachers may well teach these and other cases differently after reading Goldberg’s chapters.’
– Steven J. Burton, The University of Iowa, US

‘This book offers valuable insights and new perspectives on the often thorny problems of contract law as it can – and does – affect ‘sophisticated parties’. Lawyers as well as academics on both sides of the Atlantic will welcome the important contribution made here to the ongoing debates which rage continually within this core area of the law.’
– Phillip Taylor MBE and Elizabeth Taylor, The Barrister Magazine

Contents: 1. Introduction PART I. Direct Damages 2. The Reliance-Flexibility Tradeoff and Remedies for Breach 3. Assessing Damages: Now or Then? 4. The Lost Volume Seller Problem and Why Michael Jordan Wasn’t One 5. Six Pennies for Your Thoughts: Freund v. Washington Square Press 6. Freund Through the Looking Glass: Chodos v. West Publishing Co. 7. Cleaning Up Lake River PART II. Consequential Damages 8. The “tacit assumption” and consequential damages 9. Buffalo’s Field of Dreams: Kenford Company v. Erie County 10. The Achilleas: Forsaking Foreseeability PART III. Excuse and Changed Circumstances 11. Excuse Doctrine: The Eisenberg Uncertainty Principle 12. After Frustration: Three Cheers for Chandler v Webster 13. A Precedent Built on Sand: NorCon v. Niagara Mohawk PART IV. Offer and Acceptance 14. Brown v. Cara, the Type II Preliminary Agreement, and the Option to Unbundle 15. Traynor (Drennan) v Hand (Baird): Much Ado About (Almost) Nothing 16. Concluding Remarks Index
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