The Dignity of Commerce: Markets and the Moral Foundations of Contract Law

by Nathan B. Oman

Overview

Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society.

With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.

The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.
 

Product Details

ISBN-13:	9780226415529
Publisher:	University of Chicago Press
Publication date:	01/19/2017
Pages:	304
Product dimensions:	6.10(w) x 9.00(h) x 1.00(d)

About the Author

Nathan B. Oman is professor of law at William and Mary Law School.
 

Table of Contents

Preface ix

Chapter 1 Introduction: Shakespeare and the Predicament of Contract Theory 1

Part 1

Chapter 2 Well-Functioning Markets and Contract Law 23

Chapter 3 The Moral Consequences of Well-Functioning Markets 40

Chapter 4 Contract Law, Efficiency, and Morality 67

Part 2

Chapter 5 Consideration 89

Chapter 6 Remedies 112

Chapter 7 Boilerplate 133

Chapter 8 Pernicious Markets and the Limits of Contract Law 160

Conclusion 183

Notes 185

Bibliography 263

Table of Authorities 287

Index 293

Editorial Reviews

Oman is a careful analyst and commentator who offers novel and interesting insights into contract law and contract law theory. He has grounded his argument on an impressively wide range of legal and nonlegal scholarship and case law, and his argument is consistently clear and persuasive.

Brian Bix

"Oman’s contribution is to argue, first, that market economies—and, in particular, the prosperity they have generated—could not have arisen without a robust respect for the sanctity of contracts; and, second, that there is an important connection between contracts, the markets they support, and the 'liberal virtues' markets encourage....For those
reasons, the books repay close attention and are welcome additions to the ongoing conversation about the moral place of markets in a humane and just society."

Review of Politics

Both markets and contract law are central institutions of modern liberal societies through which citizens come to see themselves as free and equal persons and acquire the virtues that fit them for participation as such. Although we standardly assume the importance of this relation between markets and contract law, and the economic analysis of this relation is now well-developed, it is striking that contemporary contract theories have not explored the moral status of markets and the way they may fit with and serve the ends, both noneconomic as well as economic, of contract law. In The Dignity of Commerce, Nate Oman meets this important need by providing a systematic, thoughtful, and clearly written account of markets and contract law that presents their relation in a new and subtle light and through this illumines a wide range of doctrines and topics in contract law.

Peter Benson