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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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The Use and Abuse of Historical Narrative

The Use and Abuse of Historical Narrative

Debates over Incomplete Contracts

(p.188) Ten The Use and Abuse of Historical Narrative
Calculating Promises
Stanford University Press

The debate over incomplete contracts pits two sides (dubbed right and left poles), both of which rely on a common historical narrative to generate opposing normative conclusions. This historical narrative is consistent with the widespread notion that up until well into the twentieth century, explicit consent was the lynchpin of contractual obligation, and that enforcement of contracts was based on explicitly specified intent at the time the agreement was made. The right pole is comprised of an uneasy coalition of autonomy theorists and proponents of the economic analysis of the law, who argue in favor of a contract law that more closely approximates classical law. Randy Barnett provides the most detailed elaboration of autonomy theory on incompleteness in his theory of default rules. On the other hand, the left pole, which includes Lisa Bernstein and Robert Scott, argues that the socialization of contract was, and remains, a necessary result of changed economic conditions. The common historical narrative is based on three interrelated ideas: unlimited freedom of contract, contract as private lawmaking, and completion of incomplete contracts.

Keywords:   historical narrative, incomplete contracts, consent, contract law, autonomy theory, default rules, socialization, freedom of contract, private lawmaking, Lisa Bernstein

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