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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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Evaluating the Frame of Incompleteness Discourse

Evaluating the Frame of Incompleteness Discourse

Chapter:
(p.217) Eleven Evaluating the Frame of Incompleteness Discourse
Source:
Calculating Promises
Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804753982.003.0012

The two opposing sides in the debate over incomplete contracts both rely on a flawed historical narrative. This flaw is evident in the work of judges in implying contractual obligations. Implication on the basis of community standards of fairness and justice was widespread not only to generate obligation in the first place (quasi contracts), but also to elaborate particular duties within ongoing contractual relationships. Notable examples of such implication are the early cases that develop a general requirement of good faith in performance. The implication of good faith was not an anti-market strategy. The cases implying duties of reasonableness, fairness, or good faith were business cases intended to make commercial relationships work. This chapter examines the common historical narrative invoked in the debate over contractual incompleteness by considering two historical moments: the classical revolution in contract law and the current debate. In particular, it looks at the socialization of contracts and the conflicts over the content of obligations, with particular reference to incompleteness and the implication of contract terms.

Keywords:   incomplete contracts, historical narrative, incompleteness, contract law, obligations, good faith, reasonableness, fairness, socialization, contract terms

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