Contracts Then and Now: An Appreciation of Friedrich Kessler

Abstract

Succeeding generations of Contracts scholars too young to have attended Friedrich Kessler's Contracts course can only imagine its content from Fritz's powerful writings and from his enduring casebook. The modem Contracts course as taught today, however, is surely different. Today, Contracts is a course addressing the regulation of private transactions in which our courts, as self-conscious social engineers, are evaluated in terms of their ability to define rules that optimally assign risks and informational burdens in order to broadly enhance societal welfare. There is little question today that the role of courts in resolving contract disputes is to regulate underlying behavior and to protect parties in unequal bargaining positions. Courts must also define what are called "default" rules—rules to control where the parties' meaning or intent is unclear—with attention to problems of monopoly or economic power, differential informational advantages, and relative risk-bearing ability. These are not unimportant issues to a modem society, and the concepts and principles of modem Contracts are necessary implements in every lawyer's tool chest. Nevertheless, as a course in applied regulation, Contracts today is not always a class favorite and, to many, lacks the drama and apparent relevance of more popular Yale Law School courses, such as those on discrimination, free speech, or constitutional interpretation. The Contracts course taught by Fritz Kessler, in contrast, was hardly lacking in drama or relevance. Kessler saw the various doctrines of contract law and the principle of freedom of contract as intimately tied to the great issues of the modem world: the apparent decline of modem capitalism; the threatened capture of democracy by industrial interests; and the exploitation and strangling of the common consumer in a web of contractual obligation. He viewed the courts as accomplices throughout, well meaning but naive, clinging by rote to tired doctrines of promise and assent, yielding to an instinct for justice in a confused manner and without regard to developing a coherent theory of contractual interpretation.