• Login
    View Item 
    •   Home
    • Yale Law School Faculty Scholarship
    • Faculty Scholarship Series
    • View Item
    •   Home
    • Yale Law School Faculty Scholarship
    • Faculty Scholarship Series
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of openYLSCommunitiesPublication DateAuthorsTitlesSubjectsThis CollectionPublication DateAuthorsTitlesSubjects

    My Account

    LoginRegister

    Statistics

    Display statistics

    The Common Law of Contract and the Default Rule Project

    • CSV
    • RefMan
    • EndNote
    • BibTex
    • RefWorks
    Thumbnail
    Name:
    The_Common_Law_of_Contract_and ...
    Size:
    3.954Mb
    Format:
    PDF
    Download
    Author
    Schwartz, Alan
    Scott, Robert
    
    Metadata
    Show full item record
    URI
    http://hdl.handle.net/20.500.13051/4866
    Abstract
    The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule by writing contracts that contain just the gap the rule could fill. A long-standing project of academics and lawyers attempts to supplement common law contract rules with substantive default rules and default standards. This project has produced Article 2 of the UCC and the Second Restatement of Contracts and the project plans to produce more privately created contract law. We show that the "default rule project" could not create substantive default rules because the contract terms for which the rules would substitute are commonly context dependent: the terms' content either is a function of particular parties' circumstances or a particular trade's circumstances. Members of the default rule project, whom we call "drafters, could not access the information needed to create efficient rules that require such local knowledge. Instead, the drafters supplied commercial parties with default standards that courts can apply transcontextually in addition to or as replacements for the common law rules. Contracts sometimes do contain standards, but only when the standards are accompanied by substantive terms from which courts can infer the parties' contracting goals and thus apply the standards to advance them. The drafters' decision to adopt unmoored standards was a mistake because commercial parties do not accept, and thus contract out of the statutory and restatement default standards. In contrast, the common law's transcontextual default rules continue to stand Our analysis explains the default rule project's past failures and their current consequences: the Article thus illuminates the contract law we have even as it cautions that the default rule project must materially change else it risk repeating past errors.
    Collections
    Faculty Scholarship Series

    entitlement

     
    DSpace software (copyright © 2002 - 2023)  DuraSpace
    Quick Guide | Contact Us
    Open Repository is a service operated by 
    Atmire NV
     

    Export search results

    The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

    By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

    To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

    After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.