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Justice in Transactions Benson Peter

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Justice in Transactions Benson Peter

Published online by Cambridge University Press:  24 February 2022

Jennifer Nadler
Jennifer Nadler*
Affiliation:
Osgoode Hall Law School, Toronto, Canada
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Type
Book Review
Information
Canadian Journal of Law & Jurisprudence , Volume 35 , Issue 2 , August 2022 , pp. 565 - 573
Copyright
© The Author(s), 2022

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Footnotes

*

Peter Benson, Justice in Transactions: A Theory of Contract Law (Harvard University Press, 2019) pp. 610 [ISBN 978-0674237599]. All in-text references are to this book.

References

1. Lon L Fuller, “Consideration and Form” (1941) 41:5 Colum L Rev 799.

2. See for example BJ Reiter, “Courts, Consideration, and Common Sense” (1971) 27:4 UTLJ 439; John Swan, “Consideration and the Reasons for Enforcing Contracts” (1976) 15 UWO L Rev 83; James D Gordon III, “Dialogue About the Doctrine of Consideration” (1990) 75:5 Cornell L Rev 986; MB Wessman, “Should We Fire the Gatekeeper? An Examination of the Doctrine of Consideration” (1993) 48:1 U Miami L Rev 45.

3. See for example Williams v Roffey Brothers and Nicholls (Contractors) Ltd, [1991] 1 QB 1 (CA); NAV Canada v Greater Fredericton Airport Authority Inc, 2008 NBCA 28, 229 NBR (2d) 238, 290 DLR (4th) 405; Gay Choon Ing v Loh Sze Ti Terence Peter and another appeal, [2009] 2 SLR(R) 332.

4. For a similar criticism of Benson’s earlier work, see Alan Brudner, The Unity of the Common Law, 2d ed (Oxford University Press, 2013) at 209 n 82.

5. See Haigh and another v Brooks [1835-42] All ER Rep 438 at 441. In his first edition (1876), Pollock, quoting Hobbes’ Leviathan, wrote: “[t]he value of all things contracted for is measured by the appetite of the parties, and therefore the just value is that which they be contented to give.” Pollock, Principles of Contracts, 1st ed (Stevens & Sons, 1876) at 154. See also the early editions of Chitty on Contracts. For example, in the fourteenth edition, the editor writes: “… it is not essential that the consideration be adequate in point of actual value—the law having no means of deciding upon this matter.” JM Lely, ed, Chitty on Contracts, 14th ed (Sweet & Maxwell, 1904) at 21 [emphasis in original].

6. Lon L Fuller & William R Perdue, “The Reliance Interest in Contract Damages: I” (1936) 46:1 Yale LJ 52.

7. I have made an argument along the same lines in Jennifer Nadler, “Freedom from Things: A Defense of the Disjunctive Obligation in Contract Law” (2021) 27:3 Leg Theory 177.

8. Ibid .

9. See Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge University Press, 1991) at §20.

10. See GWF Hegel, The Philosophy of Right, translated by TM Knox (Oxford University Press, 1967) at para 77.