Justice in Transactions: A Theory of Contract Law

by Peter Benson

Overview

“One of the most important contributions to the field of contract theory—if not the most important—in the past 25 years.” —Stephen A. Smith, McGill University

Can we account for contract law on a moral basis that is acceptable from the standpoint of liberal justice? To answer this question, Peter Benson develops a theory of contract that is completely independent of—and arguably superior to—long-dominant views, which take contract law to be justified on the basis of economics or promissory morality. Through a detailed analysis of contract principles and doctrines, Benson brings out the specific normative conception underpinning the whole of contract law. Contract, he argues, is best explained as a transfer of rights, which is complete at the moment of agreement and is governed by a definite conception of justice—justice in transactions.

Benson’s analysis provides what John Rawls called a public basis of justification, which is as essential to the liberal legitimacy of contract as to any other form of coercive law. The argument of Justice in Transactions is expressly complementary to Rawls’s, presenting an original justification designed specifically for transactions, as distinguished from the background institutions to which Rawls’s own theory applies. The result is a field-defining work offering a comprehensive theory of contract law. Benson shows that contract law is both justified in its own right and fully congruent with other domains—moral, economic, and political—of liberal society.

Product Details

ISBN-13:	9780674237599
Publisher:	Harvard University Press
Publication date:	12/17/2019
Pages:	624
Product dimensions:	6.12(w) x 9.25(h) x 1.80(d)

About the Author

Peter Benson is Professor of Law at the University of Toronto. A former clerk for Chief Justice Bora Laskin of the Supreme Court of Canada, he is the editor of The Theory of Contract Law. His work has appeared in journals including Political Theory, Columbia Law Review, Iowa Law Review, Cardozo Law Review, and Canadian Journal of Law and Jurisprudence, as well as in leading collections such as the Oxford Handbook of Jurisprudence and Philosophical Foundations of Tort Law.

Table of Contents

Preface ix

Introduction 1

Part 1 Principles

A Formation 35

1 Consideration: Its Meaning, Role, and Consequences 40

2 Offer and Acceptance, the Objective Test, and Contractual Intent 101

3 Implication 122

B Fairness 165

4 The Paradigm of Contractual Fairness: The Principle of Unconscionability 167

5 Three Other Doctrines about Fair Terms 192

6 Fairness and Assent in Standard Form Contracts 215

C Enforcement 241

7 Fundamental Ideas 243

8 Unity and Diversity in the Law of Contract Remedies 263

9 Expectation Damages and Contract Theory 298

Part 2 Theory

10 Contract as a Transfer of Ownership 319

11 A Moral Basis for Contract as Transfer 366

12 The Stability of Contract as Transfer 395

Notes 479

Table of Cases 587

Acknowledgments 593

Index 595

Editorial Reviews

[An] ambitious book…Benson is one of the most thoughtful, sophisticated, and provocative contract theorists of our time, and Justice in Transactions is likely to become the definite modern statement of the venerable transfer theory of contract.

Michigan Law Review - Hanoch Dagan

Professor Benson is one of the world’s leading contract theorists. This book is the culmination of his research, writing, and reflections on contract law spanning over three decades. Ambitious, innovative, rigorously argued, carefully researched, and clearly written, this work is, in my view, one of the most important contributions to the field of contract theory—if not the most important contribution—in the past 25 years.

Stephen A. Smith

Peter Benson's Justice in Transactions is a remarkable—indeed, literally extraordinary—and highly significant book. It takes on basic questions of social organization in a fundamentally new way and develops its own theory of them from first principles. This book will command study from all serious scholars.

Daniel Markovits

Probably one of the most important and unified works ever written in contract theory. The book’s main effort is an attempt at organically revisiting contract theory based on a liberal conception of justice. In pursuing this effort, the book provides a coherent rationale for all the major doctrines of principles in contracts. This is a necessary exercise (one that clearly draws on years of research and engagement) to show that a liberal conception of justice can serve as an organizational idea for the law of contracts that is fully internal to its system of principles.

Notre Dame Philosophical Reviews - Simone M. Sepe