Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its 'doctrines' are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided - but does nothing else. The limited capacity of the legal proc Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration.
The limited capacity of the legal process is the key to this 'minimalist' stance. This book considers evidence that such minimalism is indeed what commercial parties choose to govern their transactions. It critically engages with alternative schools of thought, that call for active regulation of contracts to promote either economic efficiency or the trust and co-operation necessary for 'relational contracting'. The book also necessarily argues against the view that private law should be understood non-instrumentally whether through promissory morality, corrective justice, taxonomic rationality, or otherwise.
It sketches a restatement of English contract law in line with the thesis. Get A Copy. Hardcover , pages. More Details Other Editions 3. Friend Reviews. To see what your friends thought of this book, please sign up. To ask other readers questions about Contract Law Minimalism , please sign up. Be the first to ask a question about Contract Law Minimalism.
My own suggestion, which I modestly offer for consideration as more of a proto-idea than a fully developed critique or plan of action, is to consider whether we would be better served by simplifying or minimalizing the current system. What would a minimalist system of international investment law entail? Most importantly, it would largely abandon universalism at the international level in favor of particularlism and diversity at the domestic level. By this I mean that it would put the primary onus for defining and defending the reciprocal rights and obligations of host states and foreign investors on those parties themselves, turning to municipal law and investment contracts as the primary source of law, and to municipal courts as the primary default forum for resolving disputes.
My thoughts can thus be placed within an unfortunately small but hopefully growing comparative institutional literature that seeks to question the need for, or the desirability of, investment treaties as they currently exist by comparing the current system with alternative but often hypothetical institutional arrangements. An unknown error has occurred. Please click the button below to reload the page.
If the problem persists, please try again in a little while. By Yackee, Jason Webb. One is the scope and purpose of the rule of law in question. No rule is intended to give a remedy for every conceivable type of harm or loss. Another concerns the aspiration of the law to achieve results that are morally unobjectionable. This rules out certain claims that would be inequitable on the part of the claimant or unfair towards the agent.
It needs to be stressed that the grounds for limiting responsibility will not necessarily be the same in every branch of the law. In particular, the greater the weight attached to considerations of risk distribution the more likely it is that different limits will be appropriate in, for example, criminal, civil and public law. Certain theorists reject causal minimalism, which involves a restricted notion of cause that is current in no extra-legal context. They propose grounds of limitation that reflect the causal judgements that would be made outside the law.
The chief grounds proposed are that responsibility is limited i when a later intervention of a certain type is a condition of the harmful outcome ii when the agency has not substantially increased the probability of the harmful outcome that in fact supervenes and iii when the causal link involves a series of steps and ultimately peters out, so that the outcome is too remotely connected with the alleged cause. They argue that in these cases the agency, though a causally relevant condition, did not cause the outcome.
The idea that responsibility is excluded when the harm in question was conditioned by a later intervention is conventionally expressed by saying that an intervening or superseding cause broke the causal link between agency and outcome. The metaphor derives rather from the fact that in an explanatory context a cause may be regarded as an intervention in the normal course of events. The most persuasive explanations of an outcome are those that point to a condition that is abnormal or unexpected in the context or to a deliberate action designed to bring the outcome about.
An action of this sort has been described as voluntary in a broad, Aristotelian sense, a use that has attracted criticism. If these criteria are then applied in attributive contexts, an agency will not be regarded as the cause of an outcome when that outcome is explained by a later abnormal action or conjunction of events or a deliberate intervention designed to bring it about. A later event of this sort is contrasted with a state of affairs e.
The latter, however extraordinary, does not preclude the attribution of the outcome to which it contributes to the alleged cause. In practice this notion is widely applied in both civil and, as Kadish has shown, criminal law. The use of these criteria of intervention in legal systems is said to be derived from common sense and to be consistent with treating causal issues in law as questions of fact. It would not be specially the student's.
The criticism of this notion of later intervention takes two forms. First, the criteria set out are too vague to govern decision in controversial cases. Their application presents not a question of fact, not even of what is socially regarded as a fact Lucy , but a decision, often controversial, to impose or restrict liability. Suppose that a motorist negligently injures a pedestrian, who is then taken to hospital and wrongly treated for the injury. Instead of asking whether the mistaken treatment was so abnormal as not to be accounted a consequence of the motorist's negligent driving it would, in the critics' eyes, be better to ask whether the risk of medical mistreatment should be borne exclusively by the hospital authorities.
Secondly, even if the criteria suggested for selecting certain conditions as causes are in place in explanatory inquiries they are not necessarily so in attributing responsibility. There is no good reason to transfer them from an explanatory to an attributive context. To do so in civil law may result in saddling a person guilty of momentary carelessness with massive losses Waldron.
Another limiting notion that has some claim to be regarded as causal is that of probability. Objective probability is here contrasted with subjective foreseeability, but this probability must be relative to an assumed epistemic base. It is inevitably a matter of policy which base to choose, and whether to include information not known or not available to the agent when he or she or it acted. Responsibility is excluded in relation to an outcome the probability of which was not substantially increased by the agency in question.
This theory, long orthodox in German civil law, but increasingly supplemented by policy-oriented criteria, is intuitively attractive when the agent wrongfully exposes someone to a risk of harm to which they would not otherwise be exposed. For example, the agent wrongfully obstructs a pathway so that the claimant is forced to take a more dangerous route along a canal, and falls into the canal, sustaining injury.
The obstructer is then the adequate cause of the injury. But one who wrongfully delays a passenger who is as a result obliged to board a later airplane, which crashes, is not the adequate cause of the passenger's death in the crash. At least on the basis of information available at the time, the probability of being killed in an air crash was not substantially increased by the delay.
Contract law - New World Encyclopedia
There are however instances in which an agency substantially increases the probability of harm but the harm that occurs would intuitively be attributed to a later intervention. Suppose, for example, that in the example given a passer-by deliberately threw the claimant into the canal. It would be natural to attribute any injury suffered by the claimant not to the obstruction of the pathway but to the act of the third person. This objection can be met by having recourse to the risk theory, a version of the probability theory with strong support in Anglo-American writing in both criminal and civil law Keeton, Seavey, Glanville Williams.
According to this theory responsibility for harmful outcomes is restricted to the type of harm the risk of which was increased by the agency's intervention. But much then turns on how the agent's conduct and the risk are defined.
Is the risk of falling into the canal different from the risk of being pushed into it? As stated earlier, in law responsibility for harm can rest on risk allocation as well as on causation.
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The risk theory has merits that are independent of its claim to explain what it is for an agency to cause harm. For example, if a rule requiring machinery to be fenced is designed to prevent harmful contact between the machinery and the bodies of workmen, a workman who suffers psychological harm from the noise made by the unfenced machine cannot ground a claim for compensation on the failure to fence.
The fencing requirement was not designed to reduce noise, even though a proper barrier would have reduced the noise to such an extent as to avoid the psychological trauma. The limitations set by the purposes of legal rules cannot be regarded as causal.
They vary from one branch of the law and one legal system to another. It is true that sometimes the purpose of legal prohibition may be the simple one of imposing responsibility for the harm caused by a breach of that prohibition. In that case the limits set by causal and purposive criteria coincide. But even in such a case it is a matter of legal policy which types of harm are to be compensated or to lead to criminal liability. The purposive limits on responsibility have therefore either to be regarded as additional to those later intervention, heightened probability proposed by those who reject causal minimalism, or as replacing them.
The latter view is consistent with causal minimalism. Other proposed criteria of limitation are based on moral considerations. Theorists who regard fault as an essential condition of criminal or civil responsibility often argue that a person should not be liable for unintended and unforeseeable harm. There are problems about settling whether only the type of harm or the specific harm must be unforeseeable, and the moment at which foreseeability is to be judged.
But foreseeability, though it bears some relation to probability, is clearly a non-causal criterion, and one that can apply only to human conduct, not to other alleged causes. Moreover some supporters of the risk theory argue that different criteria should govern the existence and extent of legal liability.
Even if the foreseeability of harm is a condition of liability, sound principles of risk allocation place on the agent who is at fault in failing to foresee and take precautions against harm the risk that an unforeseeable extent of harm will result from his or her fault, provided that this is of the type that the rule of law in question seeks to prevent.
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There is no reason to suppose that the law, when it engages in explanatory inquiries, adopts different criteria of causation from those employed outside the law in the physical and social sciences and in everyday life. However, even here, requirements of proof may lead to a divergence, for example, between what would medically be treated as the cause of a disease and what counts in law as its cause.
As regards attributive uses of cause, the fact that the law has to attend simultaneously both to the meaning of terms importing causal criteria and to the purpose of legal rules and their moral status makes the theory of causation a terrain of debate which does not at present command general agreement and is likely to remain controversial e. Nature and Functions of Causation 2. Causation and Legal Responsibility 3. Criteria for the Existence of Causal Connection in Law 3. Nature and Functions of Causation Law is concerned with the application of causal ideas, embodied in the language of statutes and decisions, to particular situations.
Criteria for the Existence of Causal Connection in Law The theories concerning the criteria for the existence of causal connection in law fall into two classes. Bibliography Becht, A. Louis: Committee on Publications, Washington University, Brudner, A.
Calabresi, G. Muller, Coase, R. Collingwood, R. Epstein, R.
Minimal Semantics and Legal Interpretation
Gardner, J. Green, L. Hart, H. XI, Ch. Nijhoff, Owen ed.