Introduction

• Author: Val Ricks
• Pages: xiv-xxvi

xiv

Introduction

Sources of Contract Law

Before the American Revolution, the American states were British colonies.

English law, including English contract law, applied in each of the thirteen colonies.

The Revolutionary War freed the colonies from the British crown, but each of the

new states continued to apply primarily English contract law. The federal

government came into existence in the 1780s as a government of limited powers.

Various attempts have since been made to promulgate a federal contract l aw, but

none have as yet succeeded.

That means that states control contract law. Contract law is fashioned by state

courts and state legislatures. The English law of contracts was created one case at

a time in England's courts, and our states have generally carried on that tradition.

Court-created law is usually called "common law" because English medieval royal

courts supposedly adopted as law the common customs of the people, and also

because that law applied nationally. The name stuck several hundred years ago.

Now, our court-made law is called "common law" even if it is contrary to the

customs of the people and applies only in a single jurisdiction within the United

States. State legislatures also get in the act by passing statutes that codify or change

the common law. Law promulgated by legislatures is called "statutory" law as

opposed to "common law.” Most of the law we study will be common or statutory

law, adopted or promulgated by state courts or state legislatures. Here and there a

federal statute or regulation will intrude.

In the last hundred years, two groups of lawyers have somewhat successfully

influenced the process of contract-law-making in America. The first is the National

Conference of Commissioners on Uniform State Laws (NCCUSL). The Conference

includes 50 state-appointed commissioners who draft and recommend legislation

to state legislatures. Please look over NCCUSL's website at

http://www.uniformlaws.org/.

The second group is the American Law Institute (ALI). The ALI is an organization

of lawyers, judges, and legal academics dedicated to clarifying, simplifying, and

reforming law. Please look at the ALI website also, at http://www.ali.org/. (The

"About ALI" link is especially helpful.) The ALI's primary vehicle for

accomplishing its mission is to "restate" the common law; that is, to boil down all

the common law from court opinions into black letter rules that lawyers can better

understand. The first Restatement of Contracts was published in 1932. The

Restatement (Second) of Contracts was published in 1981. Sometimes the ALI

merely restates the common law. The first Restatement of Contracts tried to do that.