Restatement (Second) of Contracts

Last updated

The Restatement (Second) of the Law of Contracts is a legal treatise from the second series of the Restatements of the Law, and seeks to inform judges and lawyers about general principles of contract common law. It is one of the best-recognized and frequently cited legal treatises [1] in all of American jurisprudence. Every first-year law student in the United States is exposed to it, and it is a frequently cited non-binding authority in all of U.S. common law in the areas of contracts and commercial transactions. [2] It is a work without peer in terms of overall influence and recognition among the bar and bench, with the possible exception of the Restatement of Torts. The American Law Institute began work on the second edition in 1962 and completed it in 1979; the version in use at present has a copyright year of 1981. [3]

Contents

For an explanation of the purpose of a restatement of law, see Restatement of the Law.

Use and commentary

Legal scholars and jurists have commented extensively on the Restatement, both in contrasting it with aspects of the first Restatement, and in evaluating its influence and effectiveness in reaching its stated objectives. It is in this context of direct review that one can find numerous arguments both favoring and criticizing some aspects of the Restatement as an independent source of legal scholarship. [4] [5] [6] [7] [8]

Although several sections of the Restatement contained new rules which sometimes contradicted existing law, courts citing these sections have predominantly adopted the Restatement's view, citing them as a court would cite statute or code. [9]

Far more common, however, is the practice of citing the Restatement to clarify generally accepted doctrine in every major area of contract and commercial law. It is in this context of legal research that one can find the Restatement used as direct substantiation and persuasive authority, to validate the arguments and interpretations of individual legal practitioners. [10] [11]

Legacy

Although the Restatement of Contracts is still an influential academic work, certain aspects have been superseded in everyday legal practice by the Uniform Commercial Code. Specifically, the UCC has replaced the Restatement (Second) of Contracts in regard to the sale of goods. The Restatement (Second) of Contracts remains the unofficial authority for aspects of contract law which find their genesis in the common law principles of the United States and, previously, England.[ citation needed ]

See also

Related Research Articles

Common law Law created by judges

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Common-law precedent is a third kind of law, on equal footing with statutory law and subordinate legislation.

In law, a citation or introductory signal is a set of phrases or words used to clarify the authority of a legal citation as it relates to a proposition. It is used in citations to present authorities and indicate how those authorities relate to propositions in statements. Legal writers use citation signals to tell readers how the citations support their propositions, organizing citations in a hierarchy of importance so the reader can quickly determine the relative weight of a citation. Citation signals help a reader to discern meaning or usefulness of a reference when the reference itself provides inadequate information.

Uniform Commercial Code

The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through UCC adoption by all 50 states, the District of Columbia, and the Territories of the United States.

American Law Institute

The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. Members of ALI include law professors, practicing attorneys, judges and other professionals in the legal industry. ALI writes documents known as "treatises", which are summaries of state common law. Many courts and legislatures look to ALI's treatises as authoritative reference material concerning many legal issues. However, some legal experts and the late Supreme Court Justice Antonin Scalia, along with some conservative commentators, have voiced concern about ALI rewriting the law as they want it to be instead of as it is.

Samuel Williston was an American lawyer and law professor who authored an influential treatise on contracts.

<i>Bluebook</i> Style guide on legal citation

The Bluebook: A Uniform System of Citation is a style guide that prescribes the most widely used legal citation system in the United States. It is taught and used at a majority of U.S. law schools, and is also used in a majority of federal courts. There are also several "house" citation styles used by legal publishers in their works. The Bluebook is compiled by the Harvard Law Review Association, the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. Currently, it is in its 21st edition. Its name derives from the cover's color.

In the United States, state law refers to the law of each separate U.S. state.

Option contract

An option contract, or simply option, is defined as "a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer".

In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. There are now four series of Restatements, all published by the American Law Institute, an organization of judges, legal academics, and practitioners founded in 1923.

The University of Pennsylvania Law Review is a law review focusing on legal issues, published by an organization of second and third year J.D. students at the University of Pennsylvania Law School. It is the oldest law journal in the United States, having been published continuously since 1852. Currently, seven issues are published each year with the last issue traditionally featuring papers from symposia held by the review each year. It is one of the four law reviews responsible for publication of the Bluebook. It is one of seven official scholarly journals at the University of Pennsylvania Law School, and was the third most cited law journal in the world in 2006.

Good faith (law)

In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in a number of contract types in order to reinforce the express covenants or promises of the contract.

John Harriss Langbein is the Sterling Professor of Law and Legal History at Yale Law School. He is an expert in the fields of trusts and estates, comparative law, and Anglo-American legal history.

Arthur Linton Corbin was an American lawyer and legal scholar who was a professor at Yale Law School known for his major treatise on contract law, Corbin on Contracts. He helped to develop the philosophy of law known as legal realism, and wrote one of the most celebrated legal treatises of the Twentieth century, Corbin on Contracts.

The Oxford University Standard for Citation of Legal Authorities (OSCOLA) is a style guide that provides the modern method of legal citation in the United Kingdom; the style itself is also referred to as OSCOLA. First developed by Peter Birks of the University of Oxford Faculty of Law, and now in its 4th edition, it has been adopted by most law schools and many legal publishers in the United Kingdom. An online supplement is available for the citation of international legal cases, not covered in the main guide.

Robert Braucher was an Associate Justice of the Massachusetts Supreme Judicial Court from January 18, 1971, until his death.

Richard Posner American judge

Richard Allen Posner is an American jurist and economist who is a senior lecturer at the University of Chicago Law School. Between 1981 and 2017, he served as a United States circuit judge of the United States Court of Appeals for the Seventh Circuit in Chicago. He is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century. He is widely considered to be one of the most influential legal scholars in the United States.

Law of the United States Overview of United States law

The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, which prescribes the foundation of the federal government of the United States, as well as various civil liberties. The Constitution sets out the boundaries of federal law, which consists of Acts of Congress, treaties ratified by the Senate, regulations promulgated by the executive branch, and case law originating from the federal judiciary. The United States Code is the official compilation and codification of general and permanent federal statutory law.

A table of authorities is part of a legal brief that contains an index of the cases, statutes, and secondary sources cited. This article deals specifically with the characteristics of tables of authorities in the United States. The table of authorities, often called a TOA, is frequently a legal requirement for litigation briefs; the various state courts have different rules as to what kinds of briefs require a TOA. The TOA list has the name of the authority followed by the page number or numbers on which each authority appears, and the authorities are commonly listed in alphabetical order within each grouping. The intention is to allow law clerks and judges to easily and rapidly identify and access the legal authorities cited in a litigation brief.

The Columbia Journal of Environmental Law is a student-run law review published at Columbia University's School of Law. The journal primarily publishes articles, notes, and book reviews discussing environmental law and policy and related subjects.

References

  1. ↑ Acceptable citation format under the Bluebook: "Restatement (Second) of Contracts § ___ (1981)." The Bluebook: A Uniform System of Citation § 12.8.5 (Columbia Law Review Ass'n et al. eds., 17th ed. 2000)
  2. ↑ Bauman, Richard (2002). Ideology and Community in the First Wave of Critical Legal Studies . Toronto: University of Toronto Press. ISBN   0-8020-8341-2.
  3. ↑ Beale, Hugh (2002). Contract Law: Casebooks for the Common Law of Europe. Oxford: Hart Pub. ISBN   978-1-84113-237-2.
  4. ↑ Interpretation and Legal Effect in the Second "Restatement of Contracts" Robert Braucher Columbia Law Review, Vol. 81, No. 1 (Jan., 1981), pp. 13-18
  5. ↑ Jacobs, Legal Realism or Legal Fiction? Impracticability Under the Restatement (Second) of Contracts, 87 Com. L.J. 289 (1982).
  6. ↑ Braucher, Offer and Acceptance in the Second Restatement, 74 Yale L.J. 302 (1964).
  7. ↑ Kelly, The Codification of Contract Law in the Twentieth Century, 88 Dick. L. Rev. 289 (1984).
  8. ↑ Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L. Rev. 23 (1985).
  9. ↑ Gregory E. Maggs, Ipse Dixit: The Restatement (Second) of Contracts and the Modern Development of Contract Law , 66 Geo. Wash. L. Rev. 508 (1998).
  10. ↑ Restitution in the Second "Restatement of Contracts"Joseph M. PerilloColumbia Law Review,Vol. 81, No. 1 (Jan., 1981), pp. 37-51
  11. ↑ Contracts: Expanded Application of Promissory Estoppel in Restatement of Contracts Section 90: Hoffman v. Red Owl Stores, Inc. Michigan Law Review, Vol. 65, No. 2 (Dec., 1966), pp. 351-358
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.