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date: 21 October 2019

Abstract and Keywords

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

Keywords: classical contract law, substantive premise, voluntaristic premise, conceptualistic premise

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