E-Book Overview
The common law of England and the United States and the civil law of continental Europe have a similar doctrinal structure, a structure not found in the English cases or Roman legal texts from which they supposedly descend. In this original and unorthodox study of common law and legal philosophy the author throws light on the historical origins of this confusion and in doing so attempts to find answers to many of the philosophical puzzles which contract lawyers face today. Reassessing the impact of modern philosophy upon contract law, the author concludes that modern philosophy having failed to provide a new basis for a coherent doctrinal system in the law of contract, the only hope for devising such a coherent system lies in rediscovering the neglected philosophy of Aristotle and Aquinas.
E-Book Content
CLARENDON LAW SERIES Edited by TONY HONORÉ AND JOSEPH RAZ CLARENDON LAW SERIES Some Recent Titles in this Series The Foundations of European Community Law (2nd edition) By T. C. HARTLEY An Introduction to Administrative Law (2nd edition) By PETER CANE Conflicts of Law and Morality By KENT GREENAWALT Bentham and the Common Law Tradition By GERALD J. POSTEMA An Introduction to the Law of Contract (4th edition) By P. S. ATIYAH The Principles of Criminal Evidence By A. A. S. ZUCKERMAN An Introduction to the Law of Trusts By SIMON GARDNER Public Law and Democracy in the United Kingdom and the United States of America By P. P. CRAIG Precedent in English Law (4th edition) By SIR RUPERT CROSS and J. W. HARRIS The Philosophical Origins of Modern Contract Doctrine By JAMES GORDLEY Principles of Criminal Law By ANDREW ASHWORTH Playing by the Rules By FREDERICK SCHAUER Interpretation and Legal Theory By ANDREI MARMOR Norm and Nature By ROGER A. SHINER The Philosophical Origins of Modern Contract Doctrine BY JAMES GORDLEY C L A R E N D O N PRESS • O X F O R D This book has been printed digitally and produced in a standard specification in order to ensure its continuing availability OXFORD UNIVERSITY PRESS Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan South Korea Poland Portugal Singapore Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © James Gordley 1991 The moral rights of the author have been asserted Database right Oxford University Press (maker) Reprinted 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressely permisstted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover And you must this impose same condition on any acquirer ISBN 978-019-8258308 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne ACKNOWLEDGEMENTS I WOULD like to thank for their suggestions and encouragement John Barton, Robert Cooter, Robert Feenstr