Contract Law in Commercial Transactions: An Artifact of Twentieth Century Business Life?

This article is a somewhat abridged version of the fifth annual Foulston-Siefkin Lecture which Professor White delivered at the Washburn University School of Law. The complete text of the speech was printed in the Washburn Law Journal, Volume 22, Number 1, Fall 1982. Diligent first-year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year-long analysis are several inarticulate hypotheses: that contracting parties make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to the law\u27s command. Contracting parties are presented as a microcosm surrounded by an impermeable membrane, a microcosm always in equilibrium and always responding to the rules and sanctions of contract doctrine. Of course, persons in this microcosm violate their contractual obligations but those injured by the violation are appropriately recompensed by damages or are protected by specific performance or other order of the court. Neither the passions of man nor the effects of fire, flood, war, the demands of the economy, the harsh pressures of depression, inflation, or shortage cross this membrane. The microcosm is free of such influences, governed not by the law of nature or economics but by the law of contract