BOOK REVIEW: Contract After the Fall. THE LAW OF CONTRACT. By Hugh Collins. Skip over navigation
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Copyright (c) 1987 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review

BOOK REVIEW: Contract After the Fall.


London: Weidenfeld and Nicolson. (Law in Context). 1986. xii + 236 pp. 7.50.

July, 1987

39 Stan. L. Rev. 1537


Jay M. Feinman *


A staple routine in the repertoire of every contract law teacher is some version of the story that P.S. Atiyah entitled The Rise and Fall of Freedom of Contract. 1 In brief, the story relates the development of classical contract law and its subsequent collapse in the face of attacks by legal realists and others. Classical contract law expressed an individualist social vision -- "freedom of contract" and all it entailed -- through a body of abstract, formal doctrine. The integrity of the social vision and of the doctrine depended on objective dichotomies; public law was different than private law, and liability assumed by consent (contract) was different than liability imposed by law in the absence of consent (tort). Post-classical scholars collapsed distinctions like these by subjecting them to logical criticism and by pointing out the gap between the theory of classical law and the social practices it regulated. Their attack made the formality of the doctrine illusory and undermined the integrity of classical law.

While different people tell different versions of the story, 2 a consensus exists on at least the skeletal outline of the rise and fall. There is no such consensus, however, on the denouement of the tale -- what comes after the fall. Through the middle decades of this century scholars attempted to work out an accommodation between classical contract doctrine and the attack on it. But more recently, the belief in a successful accommodation has dimmed. Scholars now increasingly offer new models ...
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