Law Commons^™

The Social Cost Of Contract, David A. Hoffman, Cathy Hwang

All Faculty Scholarship

When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts—such as following through with weddings, conferences, and other large gatherings—will greatly increase the risk of rapidly spreading disease. A close reading of past cases illustrates that when social hazards sharply increase after formation, courts have sometimes rejected, reformed, and reinterpreted contracts so that parties who breach to reduce external harms are not left holding the bag.

This Essay builds on that observation in making two contributions. Theoretically, it characterizes contracts as bargains …

Unequal Promises, Aditi Bagchi

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This essay explores the nature and implications of a type of inequality that is widespread but largely ignored. Promises deliver important ethical value, and commercial promises, because they are our most common experience of promise with strangers, are of special value. But not all commercial promises generate that value equally. This paper makes the following claims: (1) while some retail promises are promises either to deliver a good or service, or to pay some compensation, other retail promises are simple promises to deliver a good or service; (2) retail promises in high-end markets are more likely to have the simple …

The Best Puffery Article Ever, David A. Hoffman

All Faculty Scholarship

This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: puffery. Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on assumptions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such analyses are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing? The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of …