GRANT GILMORE
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By: Ohio State University Press
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Customer Reviews:
Total reviews: 5
Average rating: 4.5 of 5
A thrilling, concise expose into the fiction of contract law 4 out of 5 stars.
13 of 13 people found this review helpful.
Reading Death of Contract is like a fresh glass of water after a hot day at work. It refreshes the mind, and makes you think that there can be some coherence to Tennyson's `lawless science of the laws'. The beauty of Gilmore's concise and short tome (I devoured it in three hours) is that it makes you begin to see contract law for what it really is: a construct designed by academics and over clever jurists, who have hyped up dead cases to the max in order to create their vision of `contract law'.
It would be easier at this stage to descend into legalese, naming cases, and tediously analyzing the way Gilmore crushes the sacred cows that these landmarks in contract law have become. Poor lawyers all know the precedents Gilmore takes on: Foakes v Beer ; Stilk V Myrick. What this book does is demonstrate the mangled reasoning of these cases. We learn that they achieved fame through their selection by conservative law school after conservative law school as staple fodder for years of aspirant lawyers. The cases that make up the foundations of contract law come across as aberrations, lucky strikes that have gone on too long.
Gilmore shows that contract law is no holy part of out legal matrix. Instead, it is an incredibly fluid field of law, and we can legitimately, even after three hundred years of decided cases, still be allowing ourselves to ask when a contract actually is a contract. Gilmore sees contract law as analogous to your first battered up motor: a good runner, you have your fun with it, but there comes a point when its time to upgrade. I like his reasoning: there has been a death of contract. With its stifling formalism, with its mindless and utterly pointless disputes on when you have "consideration" and when you don't, contract law has been overtaken by a road-runneresque tort framework. Screw the cumbersome restraints of some long dead law don's lovechild called "Contract" and stick it all under a duty of care to Tom, Dick, Harry and every other ambulance chaser on the East Coast.
Death of Contract has some wickedly amusing moments. In his sections on the attempts by American jurists to codify contract law in a big fat Restatement on the topic, Gilmore paints a portrait of waffling legal academics who spent thirty odd years trying to work out whether estoppel has a place in the canon of Anglo-American contract law. We get the impression of diehard traditionalists who would rather sit on beds of nails, than dare see "consideration" have its place taken by the rather nice idea that if I promise you something, and you rely on that promise to your detriment than you ought to be able to sue - an estoppel concept.
On the critical side, it would have been interesting if Gilmore had written a little more on why he thought tort would end up pacing ahead of contract. It would also have been interesting to have known whether Gilmore saw any moral worth in an area of law, which, with few exceptions, will not punish the morally wicked contract breaker from the banal breaker of the bargain. These minor gripes aside, a searing read, with lots of questions, and many startling answers.
Do your basic law school course on contract law. Then read this. You will, and I give you my word, you will then see this field of law for the fiction it is. You will see the power of legal text book writers, the force of legal conservatism, and the dynamic of smashing down a hollow area of law all in a hundred or so short pages.
