Dear Colleagues:

 

I recently came across this article and thought that it might be of interest to those of you working in contract theory:

 

Sidney W. DeLong, What is a contract. 67 S.C. L. Rev. 99-161 (2015).

 

 

Abstract:     

A contract is generally understood to be a legal duty that is deliberately created by the obligor and the obligee. But that description misses many legal relationships that are similarly created and are essential to the institution of private ordering. Hohfeld referred to these non-duty relations as privileges, powers, and immunities. In ruling on their formation and legal effect, courts often mislabel these other relationships as “contracts” in order to apply borrowed contract doctrines, such as consideration. Courts fail, however, to rationalize the application of borrowed rules to such different relationships. This article proposes that the fiction be dropped and that all such privately created relations be recognized as being contracts. Contracts that create privileges, powers, and immunities merit the same judicial and theoretical attention that is given to contracts that create rights concerning their functions, formation, content, and enforcement. Existing contract rules and principles can then be adapted to all of the modes of private ordering by agreement.

 

 

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)