Thursday, June 12, 2008

Bewig reviews Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine

Roy Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2007) is reviewed for H-Law by Matthew S.R. Bewig, Department of History, University of Florida. Kreitner's book was awarded the Cromwell Book Prize in 2007. Bewig begins:

Anyone who has taken the first-year law school course on contract law knows that the doctrine of consideration--the legal rule that the law will enforce only those promises made in exchange for some thing of value--is the defining characteristic of modern American contract law. To the extent that history of any kind enters into the discussion,it is distinctly teleological, as "ancient" cases are mined for evidence of later developments. Indeed, the doctrine of consideration is to contemporary American contract law as the doctrine of originalsim is to Christian theology: both locate the crux of the irrespective systems in the selfish nature of human choosing, and both teach that they have been around forever. Roy Kreitner's important book persuasively points out, however, that the centrality of consideration to contract law is barely a century old, a product of the social and political tumult accompanying the victory of industrial capitalism over its alternatives. At that time, conservative legal scholars invented the concept of individual calculating promisors as the only valid actors whose agreements their notion of contract law would protect. Though these libertarian ideas would have been literally unthinkable to the framers of the Constitution, who analyzed agreements according to the participation of the parties in one of several status-based relationships, some scholars now use them in constitutional interpretation as though they reflect original intent,a claim that this book lays to rest.
Kreitner's book "certainly requires substantial understandings of common-law reasoning, modern contract jurisprudence,and legal terminology generally. Therefore, those who are unfamiliar with such concepts as "quasi-contract," "past consideration," or"privity of contract," will do well to keep a copy of Black's Law Dictionary nearby." But those who persist "will reap rewards well worth the effort, because they will find an important argument about the relationship between the development of modern law and modern capitalist social relations." The book

demonstrates the fatal flaws in the dominant historical narrative of contract law, which incorrectly assumes that it has always focused on which promises to enforce between acquisitive economic actors. This narrative also teaches that before the modern era, courts rarely policed contractual relationships, seeking only to prevent fraud and coercion, and that substantial regulation of contracts emerged only with statutory reforms such as the consumer laws or the Uniform Commercial Code. All of this, of course,constitutes falsification of history.
As Kreitner shows, before the late nineteenth century, "contract law"did not exist as an independent field of legal thought and inquiry.Thus, the treatises of Edward Coke (1615), William Blackstone (1769),and James Kent (1830), set forth no substantive, freestanding discussions regarding contract law. Instead, common-law judges and scholars construed and enforced agreements of various kinds according to several well-understood jural relationships, such as those between principals and agents, masters and servants, landlords and tenants,parents and children, husbands and wives, or bailors and bailees.Each of these relationships was defined in explicit(ly) legal terms,and each human being in such a relationship possessed a well-defined constellation of legal rights and obligations which inhered to them because they were in that relationship. The "will of the parties,"which under classical legal thought has become the paramount factor in defining the terms of a contract, often was a secondary aspect of contract interpretation.
Continue reading here.