The Death of Contract

''The Death of Contract'' is a book by American law professor Grant Gilmore, written in 1974, about the history and development of the common law of contracts. Gilmore's central thesis was that the Law of Contracts, at least as it existed in the 20th-century United States was largely artificial: it was the work of a handful of scholars and judges building a system, rather than a more organic, historically rooted development based on the evolution of case law. This book is required supplemental reading in the first year program at many U.S. law schools. A second edition was published in 1995, which was edited with a new introduction by Ronald K.L. Collins.

Chapter 1. Origin

Gilmore begins the introduction forcefully, stating "We are told that Contract, like God, is dead. And so it is." Gilmore then brings us through the life of Contract, from birth to death. He notes that courts had been deciding contract law for centuries before the theory of contracts was introduced by Christopher Columbus Langdell. This assertion, that Langdell "invented" the general theory of contracts is somewhat contested by contracts scholars, with Richard Austen-Baker, for example, pointing out the lack of any evidence of any theory of contract authored by Langdell, to prior work by English jurists such as Addison and Leake and to far more developed work by English scholars such as Sir William Anson and Sir Frederick Pollock, contemporary with Langdell.

Gilmore retains the central idea that the general law of contract is a residual category, that is, what is left after all the specialized bodies of law have been added up. The world of commercial law, and within it contract law, was largely the product of the Industrial Revolution. It was created quite rapidly, outlined in little more than a half-century. Initially, for legal greats like Justice Story, there was no separate theory of contracts. Rather, there were specialized bodies of law that had been developed to address the various needs of the Industrial Revolution. Gilmore alleges, that rather than contract coming first, and the various specialties being developed afterwards, it actually was the opposite, where contract enveloped pre-existing specialties, like negotiable instruments and sales.

Gilmore credits Langdell with the “almost inadvertent discovery” of contract law, as it was the subject of his very first casebook. The goal of Langdell’s casebook was to reduce the world of contracts to major underlying principles in a scientific fashion. The theory of contracts created by Langdell is furthered by Oliver Wendell Holmes, Jr. and Samuel Williston, which Gilmore calls the Holmes-Williston construct. The theory is described whereby, “no one should be liable to anyone for anything,” or at least liability shall be strictly limited. Damages in contract were distinguished from damages in tort, and punitive damages were not to be allowed. Furthermore, courts were to act as “detached umpires or referees” and only to see that the rules of the game were followed, but not to “see that justice or anything of that sort was done.” Gilmore further describes Holmes’ view on objective interpretation of contract law, as laid out in '' The Common Law''. Thus, Gilmore states that the theory of contracts was not developed naturally from continual case law development, such as the decisions by Lord Mansfield,See '' Hawkes v Saunders'' (1782) 98 ER 1091 and ''Pillans v Van Mierop'' (1765) 97 ER 1035. He notes that '' Eastwood v Kenyon'' (1840) 114 ER 482 is typically seen as the final rejection of Lord Mansfield's ideas. but rather it was an “ivory tower abstraction” that lived “in the law schools, not the law courts.” Often the rules of contract were the result of a string of cases being pulled together, with little citation or presentation of the facts, and declared to be a rule in the works of Williston. The problem with contract theory was that “businessman, adapting to changing circumstance, kept doing things differently. The general theory required that, always and everywhere, things remain as they have, in theory, always been.” He illustrates this argument by reference to English case law that had been elevated by the theorists to the status of "rules", in ''Stilk v Myrick'', '' Dickinson v Dodds'' and ''Foakes v Beer'', all as a way of ensuring that the doctrine of consideration would preclude the enforceability of a contract.

Chapter 2. Development

Developing on the discussion of the first chapter, Gilmore begins by focusing on the change from a subjective approach to an objective approach in the theory of contracts. Contract law in the 19th century was experiencing a shift from a formalistic regime toward a more flexible paradigm that tended to uphold the validity of contracts. This was due in part to the Industrial Revolution and the need to facilitate commerce between parties. The requirement of ceremonial trappings such as seals and ribbons gave way to a more reality-based emphasis on consideration as indicia of the parties' intent to contract.

Gilmore begins with an analysis of ''Raffles v Wichelhaus'', otherwise famously known as ''The Peerless''. He continues, noting examples of case objectification by Holmes in his book '' The Common Law'', and that if the “Magic (illusion)">magician