Contract Rights and Remedies, and the Divergence between Law and Morality

Ratio Juris 21 (2):194-211 (2008)

Authors
Brian Bix
University of Minnesota
Abstract
There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.
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DOI 10.1111/j.1467-9337.2008.00387.x
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The Morality of Freedom.Joseph Raz - 1986 - Oxford University Press.
Law's Empire.R. DWORKIN - 1986 - Harvard University Press.
The Concept of Law.Hla Hart - 1961 - Oxford University Press.
Natural Law and Natural Rights.John Finnis - 1979 - Oxford University Press.

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