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The Religious Sources of General Contract Law: An Historical Perspective


In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

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Dalton , An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1012, 1040-43, 1067-71, 1084–87 (1985)

Mensch , Freedom of Contract as Ideology, 33 Stan. L. Rev. 753 (1981)

Gordley , Equality in Exchange, 69 Calif. L. Rev. 1587, 1638 (1981)

Simpson , The Horwitz Thesis and the History of Contract, 46 U. Chi. L. Rev. 533 (1979)

Francis , The Structure of Judicial Administration and the Development of Contract Law in Seventeenth-Century England, 83 Colum. L. Rev. 35 (1983)

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
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