Journal Article 1
Schwartz, A., & Scott, R. E. (2003). Contract theory and the limits of contract law. Yale Law Journal, 541-619.
The first article is under the title “Contract Theory and the Limits of Contract Law” done by Alan Schwartz and Robert E. Scott. The authors recognized that contract law is critical in today’s life. They have described the notion that contract law lacks a descriptive theory that describes all that it is or a normative theory that determines all that it should be. In this article, the authors do not ask the normal question of what a state should offer as contract law. However, the article seeks to ask all that the businesses want as contract law by the state. In that case, a contract law for businesses can be smaller or even differential to that of parties when compared to the one that exists now (Schwartz & Scott, 2003). The authors have also indicates that the firms wish that the state enforces contracts that they are able to compose and not those that a decision maker having regards for fairness prefer to be written. Most importantly, the enforcement of such written agreements tends to presuppose the interpretation law. Moreover, the dedication towards party sovereignty that is defended by the authors needs the courts to provide a delegation of parties in the choice of contract’s terms and an interpretative theory that that can be utilized in enforcing the terms.
In addition, the article highlights that commercial parties tend to prefer adjudicators in developing partial or average accuracy towards ascertaining the real meaning of contracts instead of ensuring complete accuracy in each incidence. In that case, such parties require the courts to offer interpretations to the smallest and evidentiary premises, which can support the partial accuracy interpretations. It has also been highlighted that courts that end up deferring to preferences of entities concerning the interpretations will apply textualist interpretative technique. That is one that constricts the evidentiary premises as compared to a written contract. It is vital to note that most companies prefer the courts to understand their agreements with the most prevalent presumption that the entire agreement is composed through a majority talk. That can also be supported by the fact that such contracts are done in the language that both firms and courts use in communication. That way, the authors suggest that the textualist interpretive theory is the most prominent. That brings one to an understanding that much of current contract law is comprised of default regulations and principles. That way, such defaults bring the nations to difficult situations that can be highlighted as limitations of the law. That is due to the fact that an effective default regulation that is accepted by one entity to be one full of simplicity can lead few nations of the world and increase combined gains in many contexts. That brings one to conclude that a default principle is effective only when the entities can survive with vague descriptions of contracting duties (Schwartz & Scott, 2003). The normative theory in the law indicates that the expansion of the agreement law over the past few years has been misused. The authors provide their final stand that advocating for freeness of contact for entities should remain uncontroversial.
Journal Article 2
Rodl, F. (2013). Contractual freedom, contractual justice, and contract law (theory). Law & Contemp. Probs., 76, 57.
The second article is under the title “Contractual Freedom, Contractual Justice, and Contractual law (Theory)” done by Florian Rodl. The author of the article explains by giving illustrations of the law of contract. Florian seeks to explain that the rules and principles of the law do not act as the ends, but the means by which the enhancers tend to arrive at outcomes in courts. Most importantly, Florian explores the theme of radicalism that is associated with the point that the courts reach to a conclusion that it is permissible by the law that a contract should be terminated due to radical or fundamental ideals that have not been arrived at, although they have been crossed. Moreover, the author continues to explore the obligation of the concept of radicalism as it has been included in the doctrine’s frustration. In addition, the author touches on associations of doctrines of undue effect, economic duress as well as unconscionability. That also goes along with the concept of ultimate aim that the doctrines share in acquiring fair results in the court cases (Rodl, 2013). The author explains these concepts under the private law theory that seeks to illustrate all that the contract entails and why the law exists in its current structure. The author recognizes that there are other areas that that the private law theory handles including sociology, culture and economics. Generally, the author takes a vital approach in illuminating the sense of association of relationship between current contractual freedoms and justice.
Most importantly, the author seeks to illustrate three important notions about the contract law. That way, contract assists in helping entities to understand the common structure of the law. Another remark that is evident in the article is the contract law assists in understanding where the ex-post coordination or the case-to-case control of fairness in the agreement done by the courts is insufficient. They are also able to determine where general or ex-ante advice is required from the legislature. The contract law also enhances that there is revelation of the basic structure in application of the law especially in the cases of surrogate parenting or in organ transplants. The author has also something to say concerning the public section of the contract that falls under the fact that the contract law enhances the common morality basis. Furthermore, the liberals have a belief that the structure of the law tends to reflect and enable people to realize their freedom (Rodl, 2013). The fact is that contract law is strengthened in order to enhance the equality of human operations and especially in business activities. The author adds that the fundamental basis of equality enhanced by contract law remains as the only public aspect in its basic structure. The author concludes with a question as to why the idea of public dimension has been unattractive for discussion by many authors who have attempted to create alternatives to liberal knowledge of contract law.
Journal Article 3
Capper, D. (2009). Common mistake in contract law. Sing. J. Legal Stud., 457.
The third article for this discussion is under the title “Common Mistake in Contract Law” that has been done by David Capper. The author of the article recognizes the fact that the contract law has been developed in such a way that common errors in its construction can be noticed. Most cases, have been highlighted in courts under the fact that a common mistake that has been made by parties can render a contract to be void in nature. Most importantly, a common mistake across the law’s formation is usually shared by both entities engaged in a contract. In that case, the mistake that is committed should be associated with the matter of the available fact of law. Moreover, it should be at a point to influence the contract in two major aspects. One of the aspects is the fact that the mistake can deter an agreement from being attained. That happens through the entities’ failure to indicate a matching offer as well as acceptance towards a matter that is crucial to the contract (Capper, 2009). On another note, the entities can reach an agreement, but have a common error under respective and vital contexts of the contract. That way, there is no contract that is reached at due to the fact that one of the requirements for enhancing a valid along with an enforceable contract has not been attained.
In the second instance, it seems that there is formation of a contract to a certain level despite the fact that there is a contradictory issue as to if the contract has undergone vitiation to some point. In that case, the vitiation is regarded to take several potential forms including that it can totally undermine the agreement to a level of making it void. Moreover, it can lead to a valid contract, buy defective in nature. David also provides major examples of major cases that have been proven to have common mistakes in relation to contract formation and execution. In these cases, where an offer or acceptance fails, then an agreement will not be created. On another note, a void contract emerges when the offer and acceptance provide an agreement that lacks a subject matter (Capper, 2009). The author seeks to illustrate that there should be a common misassumption of facts, evident contractual imbalance, or lack of risk allotment to any party before a decision to provide that a contract is voidable emerges.
The three articles have provided deep information regarding contract law. The first article highlights the concepts under the contract theory and the limits posed by the contract law. The authors of the first article illustrate that the contract theories do not explain what it entails or what it should be. The authors also indicate that the law has several limitations in its application especially in the question as to whether entities should be given chances to write contracts on their own. The second article also discusses the contract law and all that entails it. It mostly focuses on the concepts and conditions under which a contract is formed. The author takes time to explain about void and voidable contracts. Lastly is the third article that highlights and discusses about the common mistakes in contract formation and execution. The three articles offer a clear picture that contract law is surrounded by several controversies especially owing to the fact that it is applied in almost all parts of the world.
|Law of Contract and Civil Procedure|