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Contract Law And Theory PDF

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CONTRACT LAW AND THEORY LexisNexis Law School Publishing Advisory Board Paul Caron Charles Hartsock Professor of Law University of Cincinnati College of Law Olympia Duhart Associate Professor of Law Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law Steve Friedland Professor of Law Elon University School of Law Joan Heminway College of Law Distinguished Professor of Law University of Tennessee College of Law Edward Imwinkelried Edward L. Barrett, Jr. Professor of Law UC Davis School of Law Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law Melissa Weresh Director of Legal Writing and Professor of Law Drake University Law School [i/ii] CONTRACT LAW AND THEORY Fifth Edition Robert E. Scott Alfred McCormack Professor of Law Director, Center for Contract and Economic Organization Columbia Law School Jody S. Kraus Patricia D. and R. Paul Yetter Professor of Law Professor of Philosophy Columbia Law School [ii/iii] ISBN: 978-0-7698-4894-5 (Print) Looseleaf ISBN: 978-0-7698-4896-9 eBook ISBN: 978-0-3271-7717-3 Library of Congress Cataloging-in-Publication Data Scott, Robert E., 1944- Contract law and theory / Robert E. Scott, Alfred McCormack Professor of Law, Director, Center for Contract and Economic Organization, Columbia Law School; Jody S. Kraus, Patricia D. and R. Paul Yetter Professor of Law, Professor of Philosophy, Columbia Law School. -- Fifth edition. p. cm. Includes index. ISBN 978-0-7698-4894-5 1. Contracts--United States--Cases. I. Kraus, Jody S. II. Title. KF801.A7S34 2013 346.7302′2--dc23 2013010601 This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright © 2013 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass. 01923, telephone (978) 750-8400. NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at www.lexisnexis.com/lawschool. Terms of Use Your use of this electronic publication (“eBook”) from LexisNexis, a division of Reed Elsevier Inc., a Massachusetts corporation, is subject to the following terms and conditions. This eBook is for your personal use only. All access to and use of this eBook is subject to U.S. and international copyright law. All intellectual property rights are reserved to the copyright holder. Redistribution or duplication of this eBook to any other electronic media or a third party is strictly prohibited unless the original eBook is deleted, purged or otherwise destroyed in its entirety. Under no circumstances may you redistribute this eBook commercially or post this eBook on an intranet, internet or SharePoint site. Any transfer of this eBook shall be to an individual person only and will subject the transferee to these terms and conditions. Finally, use of this eBook is further subject to the terms and conditions of use which were accepted at the time you completed your purchase of this eBook from the Bookstore. Hyperlink Key In order to distinguish between the links to other sections within LexisNexis™ eBooks and external links to the Internet, we have added color coding to the links. Following is a color key for the links: Blue: Links inside the eBook Green: External links to LexisNexis™ on-line and the Internet [iii/iv] DEDICATION To Madeline, Sam, and Julia and Atticus [v/vi] PREFACE In the first edition to this casebook, we began with the question: Why do we need another casebook on Contracts? Our claim then, which we believe to be true today, is that this casebook and the approach to the study of contract law that it develops are unique. We began with a belief that colors much of the analysis that follows— theory works. Not only is it more interesting to study legal rules against a background of legal theory, but the effort has practical payoffs as well. There are clear, discernable themes and patterns that underlie much of contract law, and by developing them explicitly we invite the student to develop a working model of contract law. This framework for analyzing and predicting the outcome of contract disputes is then tested through careful case and doctrinal analysis. Our commitment to the practical uses of theory commits us as well to a functional analysis of contract law. We ask: What discernable purposes are the various legal rules (as announced in cases and statutes) designed to serve? Are the policy goals desirable and how effectively are they implemented through contract doctrine? This functional approach begins with an instrumental analysis that focuses on the incentive effects of contract rules. We often ask a question familiar to students of economics: How are the rules likely to influence the behavior of similarly situated parties in the future? We use this economic perspective as an organizing principle because we believe it does the best job of any contemporary theory in explaining contract law. But we recognize that other perspectives on contract law deserve careful attention as well. In particular, throughout the casebook we use autonomy and related moral theory as an alternative framework for analyzing the law of contracts. In this edition, we add a third, pluralist, perspective that considers claims of fairness along with norms of efficiency and autonomy. In short, we believe that a commitment to a functional analysis of contract law does not demand the acceptance of any particular dogma. Skeptics will find that the organizing themes of the

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