The Death of Contract

By Grant Gilmore and Gilmore G

Book Overview

The Death of Contract is a masterful commentary on the common law, especially the law of promissory obligation known as contracts. In this slim and lively book, the late Yale law professor Grant Gilmore examines the birth, development, death, and even the resurrection of a body of American law. It is both a modern-day reply to and a funeral oration for an American legal classic--Oliver Wendell Holmes's The Common Law. Gilmore argues that the rigid, formalistic approach of classical contract law fails to reflect the realities of modern contractual relationships. He traces the historical development of contract law, highlighting its origins in the nineteenth century and its subsequent decline as courts increasingly recognized the limitations of strict adherence to formal rules, and analyzes how contract law has been absorbed into tort law. He contends that the boundaries between contract and tort have blurred, leading to a more flexible, equitable approach to enforcing promises. This shift reflects broader changes in societal values and the legal system's adaptation to these changes.

The second edition, with an instructive and timely foreword by Ronald K. L. Collins, challenges anyone interested in the life of the law to think about where it has come from and where it is trending. A new bibliography of early reviews and contemporary responses reveals how considerable the interest was, and continues to be, in this modern anti-classic.

• Format: Paperback
• Language: English
• ISBN: 081420676X
• ISBN13: 9780814206768
• Release Date: October 1995
• Publisher: Ohio State University Press
• Length: 216 Pages
• Weight: 0.67 lbs.
• Dimensions: 0.7" x 5.5" x 8.5"

Customer Reviews

It is not what you think

Contract law is abstract. It was developed in the nineteenth century as a generalized theory, a residual category for everything not falling into specialized law in the commercial sphere. The bargain theory of consideration was proposed by Holmes. When the general theory of contracts was developed by Holmes, (and Williston and Corbin), current cases were used. A contractual trap could not be sprung until the last moment. There had to be mutuality of obligations. In other words, there could be nothing like an agreement to agree. The general theory of contract was never neat and tidy according to Gilmore. The RESTATEMENT OF CONTRACTS is schizophrenic it is alleged because Williston and Corbin had opposing views. (Corbin was a different generation, though, than Karl Llewllyn, legal realist.) Nineteenth century judges were concerned about illusory promises. The underlying basis of decisions has been the distinction between good faith and bad faith agreements. The author speaks of a unified theory of civil obligations, contracts and torts. The book is brisk and charming. The author addresses a seemingly dry subject with wit.

A thrilling, concise expose into the fiction of contract law

Reading Death of Contract is like a fresh glass of water after a hot day at work. It refreshes the mind, and makes you think that there can be some coherence to Tennyson's `lawless science of the laws'. The beauty of Gilmore's concise and short tome (I devoured it in three hours) is that it makes you begin to see contract law for what it really is: a construct designed by academics and over clever jurists, who have hyped up dead cases to the max in order to create their vision of `contract law'.It would be easier at this stage to descend into legalese, naming cases, and tediously analyzing the way Gilmore crushes the sacred cows that these landmarks in contract law have become. Poor lawyers all know the precedents Gilmore takes on: Foakes v Beer ; Stilk V Myrick. What this book does is demonstrate the mangled reasoning of these cases. We learn that they achieved fame through their selection by conservative law school after conservative law school as staple fodder for years of aspirant lawyers. The cases that make up the foundations of contract law come across as aberrations, lucky strikes that have gone on too long. Gilmore shows that contract law is no holy part of out legal matrix. Instead, it is an incredibly fluid field of law, and we can legitimately, even after three hundred years of decided cases, still be allowing ourselves to ask when a contract actually is a contract. Gilmore sees contract law as analogous to your first battered up motor: a good runner, you have your fun with it, but there comes a point when its time to upgrade. I like his reasoning: there has been a death of contract. With its stifling formalism, with its mindless and utterly pointless disputes on when you have "consideration" and when you don't, contract law has been overtaken by a road-runneresque tort framework. Screw the cumbersome restraints of some long dead law don's lovechild called "Contract" and stick it all under a duty of care to Tom, Dick, Harry and every other ambulance chaser on the East Coast.Death of Contract has some wickedly amusing moments. In his sections on the attempts by American jurists to codify contract law in a big fat Restatement on the topic, Gilmore paints a portrait of waffling legal academics who spent thirty odd years trying to work out whether estoppel has a place in the canon of Anglo-American contract law. We get the impression of diehard traditionalists who would rather sit on beds of nails, than dare see "consideration" have its place taken by the rather nice idea that if I promise you something, and you rely on that promise to your detriment than you ought to be able to sue - an estoppel concept.On the critical side, it would have been interesting if Gilmore had written a little more on why he thought tort would end up pacing ahead of contract. It would also have been interesting to have known whether Gilmore saw any moral worth in an area of law, which, with few exceptions, will not punish the morally wicked contract breaker fr

A Classic Account of the Evolution of Contract Law

Provides an in depth account of the evolution of contract law. It has aptly been described as an "epic". Law students, lawyers and lay people alike will find this to be intriguing and thought provoking on many levels. Gilmore of course shows how contract law developed, but inquisitive people will also be intrigued at some of the other issues regarding what we think of as law, the development of law and the concept of precedent.In addition to the interesting subject matter, the author's tale is delivered in a wonderfully humorous writing style.Best enjoyed and fully appreciated only after law school.PS If you're considering tossing around allegations that Yale Law School legend Grant Gilmore's work is "incorrect", consider bolstering your credence by not remaining anonymous.

Saved my neck in law school--and I enjoyed it, too

When I took Contracts as a first-year law student, I read the cases, went to class, and didn't have the faintest idea what it all meant. It seemed to be a mind-numbing mix of similar facts with different conclusions. Then I read this book and--voila--it all seemed to flow together so cohesively and clearly. And, on top of that, the book is well written, has flashes of humor, and is very short. What a great book this is for any law student.

This is a great book

If you are a law student or lawyer or just anyone interested in the law (from a technical perspective) this is a great history of contract. Gillmore is a very entertaining writer and I actually found myself laughing out loud. A working knowledge of Williston, Cardozo, Posner and the seminal cases in Contract law makes this book a lot more fun. You should definitely know your legal history first. Gillmore is not going to help you along.