Contracts Commons^™

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

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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 Myth Of Equality In The Employment Relation, Aditi Bagchi

All Faculty Scholarship

Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one’s level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the employment …