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Party Sophistication And Value Pluralism In Contract, Meredith R. Miller
Party Sophistication And Value Pluralism In Contract, Meredith R. Miller
Meredith R. Miller
In a previous article, Contract Law, Party Sophistication and the New Formalism, 75 Missouri L. Rev. 493 (2010), I documented a trend in United States case law and scholarship that fashions a dichotomy between sophisticated and unsophisticated parties. That article set out to explain the trend as a theoretical compromise between formalism and realism in the face of a renewed formalism. However, as I noted in the previous article, the “new formalism” may not be formalism at all because it retains normative concerns. Indeed, the shift in legal thought may be more appropriately and simply characterized as embracing pluralism. This …
Contract Law, Party Sophistication And The New Formalism, Meredith Miller
Contract Law, Party Sophistication And The New Formalism, Meredith Miller
Meredith R. Miller
With increasing frequency, courts are mentioning party sophistication as relevant to whether a contract has been formed, whether a contract is enforceable, how the contract should be interpreted, and even, in some instances, the determination of an appropriate remedy. Sophisticated parties are held to a different set of rules, grounded in freedom of contract. It is presumed that a sophisticated party was aware of what to bargain for and read (or should have read) and understood (or should have understood) the terms of a written agreement. But, just what do courts mean when they call a contracting party “sophisticated”? “Sophistication” …