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Calculating PromisesThe Emergence of Modern American Contract Doctrine$
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Roy Kreitner

Print publication date: 2006

Print ISBN-13: 9780804753982

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804753982.001.0001

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Framing Incomplete Contracts

Framing Incomplete Contracts

Chapter:
(p.163) Nine Framing Incomplete Contracts
Source:
Calculating Promises
Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804753982.003.0010

Incomplete contracts and the implication of terms in contract disputes are the subjects of a considerable debate in legal scholarship and judicial opinion. This debate plays an indirect role in a cultural conflict over the individual subject and has centered on questions of how courts should supply missing contract terms, as well as what those missing terms should be. This chapter discusses the significance and effects of this debate by looking at the major attempts to deal with the problem in the scholarly literature, and also examines the relationship of the various scholarly discussions of incompleteness to the implied covenant of good faith. Furthermore, it considers the division of functions between interpretation and the determination of legal relations, or construction. Finally, the chapter comments on hypothetical bargain theory and default rules analysis.

Keywords:   incomplete contracts, missing terms, incompleteness, good faith, hypothetical bargain theory, default rules analysis, interpretation, construction, legal relations, contract terms

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