Introduction: Implementing the Bargain

• Author: Val Ricks
• Pages: xi-xi

xi

Introduction: Implementing the Bargain

Many judges and scholars of contract law focus their attention on the parties’

assent, on agreement. But the doctrine of contract law itself focuses on the enforcement of

a promise, one promise at a time. The central organizing rule for enforcement—the idea

that ties the doctrines of contract law together—is that the promise must be part of a fair

exchange. In formation doctrine, courts ensure an exchange by requiring consideration

(which itself requires assent) but police the fairness of the exchange through the doctrines

of mistake, duress, misrepresentation, undue influence, and unconscionability.

Separating contract law into doctrines of formation, interpretation, conditions,

subsequently occurring events, remedies, and third-party interests, as I do in this book,

distracts to some extent from discussion of the primary goal of contract doctrine, which is

to enforce fair exchange. In the cases studied in this volume, courts continue to discern and

police the bargain of the parties. Of course, the meaning of “fair” will depend on the goals

of the court; contract doctrine, like most legal doctrine, lies at the level of generality (not

too general, not too specific) that allows the plurality of views necessary for a legal system

comprising diverse and strong-willed individuals to function. Nevertheless, if you are

discerning, you should expect and be able to find in these materials arguments for and

against fairness based on autonomy, welfare, and other moral claims, just as you did for

the doctrines of formation in Volume I.

In the end, I hope you will see, notwithstanding its occasional missteps, what a

remarkable achievement contract law is and how it meshes with the culture, and encourages

the success, of a mostly honest and very ambitious people whose cooperation together is

vital to their flourishing.

—Val Ricks