New York University Public Law and Legal Theory Working Papers

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Philosophical Foundations of Contract Law, Gregory Klass, George Letsas, and Prince Saprai, eds, Oxford University Press, 2014, Forthcoming


This chapter defends an instrumental justification of contract law. The reason to have contract law is to make possible socially beneficial transactions that otherwise would not occur. The chapter thus rejects corrective justice accounts of contract (whether grounded in promisees’ expectation or reliance interests) and the idea that the point of contract law is to enforce the moral obligations of promisors. A strong connection between contract and promise is nonetheless defended. The basic role of contract law is to support the practice of the making and keeping of promises and agreements, and encourage its use. This makes performance or something just as good the natural remedy. The chapter argues that much economic analysis of contract remedies is myopic in that it either assumes what has to be justified (that promisees are entitled to the value of performance) or unjustifiably focuses on individuals transactions, rather than the practice as a whole.

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Contract, promise, remedy, instrumentalism, practice, divergence, performance, efficient breach