Death of the contract

Author: Grant Gilmore
Publisher:
Publication Date: 2005-01-01
Features: Some have told us that contracts are like God—they are dead. Indeed, there is no need for debate on this matter. The proponents of the movement to declare contracts dead then argue that since contracts are dead, they are no longer a suitable or valuable subject of study, and law students should not be burdened with the peculiar assignments on the theory of consideration. With the fact of death established, lawyers should turn their attention to other areas. They are said to observe the current situation and record their observations; they should focus on sociological analysis rather than historical or philosophical synthesis. On this point, I do not oppose their goals, nor am I entirely uninterested in what they do. Describing what you hear is undoubtedly a useful exercise. It can hone your keen observational skills and incisive analytical abilities, making your narrative clear and concise. Because not every lawyer can prepare and articulate a complex case perfectly. And when you practice careful observation and description, you naturally accumulate a series of materials. However, "one tree cannot make a forest." If these materials do not connect with other materials, they hold no meaning. The things these materials reflect are either destroyed, reconfigured, or transformed in the opposite direction—essentially, they are always in a state of flux. Moreover, these changes are often difficult to notice. Dealing with these materials is as challenging for lawyers as it is for us. Economists can apply fixed models to solve problems, but lawyers cannot. Since everything before us will soon become past, and the future is hard to predict, the best guide in designing our course of action is, of course, the knowledge we have personally experienced. But only by comparing current knowledge with past knowledge, piercing the fog of time, can the vital and comprehensive knowledge of the current state of the new materials be meaningful to us.
Of course, optimistically speaking, we do not have a complete understanding of the past. In today's museums, no matter how many kinds of antiques we can collect and display, none of us thinks in the way of Roman-era lawyers, medieval jurors, or 19th-century positivists. It is certain that our present perspectives will inevitably distort what we have experienced. Because we are not scientists, not even social scientists. But we need not be overly discouraged; instead, we should think actively. If the existence and development of contracts in the 19th century were indeed facts, and if they gradually died and were on the verge of extinction in the following 50 years, then the pressing question we face is: What exactly has changed in the theory of consideration? All the circumstances of this question, as well as related issues, will be presented and discussed here.