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Three Pictures Of Contract: Duty, Power And Compound Rule, Gregory Klass

Georgetown Law Faculty Publications and Other Works

A fundamental divide among theories of contract law is between those that picture contract as a power and those that picture it as a duty. On the power-conferring picture, contracting is a sort of legislative act, in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law puts duties on persons entering into agreements for consideration whether they want them or not. Until now, very little attention has been paid to the problem of how to tell whether a given rule is power conferring or duty imposing -- a question that should lie at …