Calculating Promises: The Emergence of Modern American Contract Doctrine
This book is a history of American contract law around the turn of the twentieth century. It meticulously details shifts in our conception of contract by juxtaposing scholarly accounts of contract with case law, and shows how the cases exhibit conflicts for which scholarship offers just one of many possible answers.
Breaking with conventional wisdom, the author argues that our current understanding of contract is not the outgrowth of gradual refinements of a centuries-old idea. Rather, contract as we now know it was shaped by a revolution in private law undertaken toward the end of the nineteenth century, when legal scholars established calculating promisors as the centerpiece of their notion of contract.
The author maintains that the revolution in contract thinking is best understood in a frame of reference wider than the rules governing the formation and enforcement of contracts. That frame of reference is a cultural negotiation over the nature of the individual subject and the role of the individual in a society undergoing transformation. Areas of central concern include the enforceability of promises to make gifts; the relationship of contracts to speculation and gambling; and the problem of incomplete contracts.
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actual agreement analysis argument Aron Eisenberg assignment attempt bailment bank book brokers calculating claim classical contract classical theorists Colum Commercial common law conception of contract conflict consent consideration doctrine construction context contract discourse contract doctrine contract law contract theory court critique cultural debate default rules delivery discussion distinction distinguish doctrine of consideration donor Duncan Kennedy duties economic effect enforceable promises evidence exchange fact faith formal framework freedom of contract gambling gap-filling Harv hypothetical bargain implied important incomplete contracts individual insurable interest intention interpretation issue judicial Law of Contracts legitimate liability limited modern nineteenth century normative obligation particular parties performance person plaintiff principle problem Promissory Estoppel question Randy E reason regarding relations relationship rhetoric risk role Samuel Williston scholars social speculation status theory of contract tion trading transaction Uniform Commercial Code valid gift Viatical Settlements wager Yale L.J.