1 Introduction 1
2 Setting the Scene: Distributive Justice, Corrective Justice,and Monism in Political Philosophy and Contract Law 9
2.1 Distributive and Corrective Justice 9
2.2 Monism in Political Philosophy and in the Law of Contracts 14
3 The Distributive Understanding of Contract Law: Kronman on Contract Law and Distributive Justice 19
3.1 Kronman's Argument 20
3.2 The Failures of the Paretian Principle 26
3.2.1 The Structure of a Contract 26
3.2.2 The Paretian Principle and Responsibility for Breach of Contract 27
3.2.3 The Paretian Principle, Consent, and Autonomy 30
3.3 Final Thoughts 31
4 Libertarianism and the Law of Contracts 33
4.1 The Main Tenets of Nozick's Libertarianism: The Entitlement Theory 33
4.1.1 The Principle of Justice in Acquisition 34
4.1.2 The Principle of Justice in Transfer 35
4.1.3 The Rectification of Injustice in Holdings 36
4.2 Libertarianism, Contract Law, and the State 36
4.2.1 Nozick on Distributive Justice 39
4.3 Why the Wilt Chamberlain Example Doesn't Work 42
4.4 Conclusion 44
5 The Division of Responsibility and Contract Law 45
5.1 A Fair System of Social Cooperation 47
5.2 The Well-Ordered Society 50
5.3 The Political Conception of the Person 50
5.4 The Idea of Free Citizens 51
5.5 The Idea of Equal Citizens 52
5.6 The Reasonable and the Rational 52
5.7 The Division of Responsibility 53
5.8 Relational Duties, Private Law, and Contract Law 54
5.9 Contract Law and Distributive Justice 56
5.10 Nonrelational Duties 58
5.11 The Original Position and the Veil of Ignorance 59
5.12 The Principles of Justice 61
5.13 The List of Primary Goods 62
5.14 Conclusion 64
6 Explaining Contract Doctrine 67
6.1 Introduction 67
6.2 The Legal Classification of Obligations 68
6.3 A Kantian Account of Private Law 70
6.4 The Nature of Contractual Rights, Duties, and Remedies 75
6.4.1 The Kantian View: Contractual Rights as Rights In Personam 75
6.4.2 Remedies for Breach: Why Expectation and Consequential Damages? 83
6.4.3 Misfeasance, Nonfeasance, and Contractual Remedies 88
7 The Objective Standard of Interaction in Contract Law: The Reasonable Person 91
7.1 The Reasonable Person Standard 92
7.2 Subjective or Objective Tests? 97
7.3 Some Objections: The Communitarian and Feminist Challenges 99
8 Fuller, Fried, and the Nature of Contractual Rights and Remedies 103
8.1 Introduction 103
8.2 Against Fuller and Perdue 105
8.3 Against Fried 109
8.4 Conclusion 114
9 Contracts and Third Parties 115
9.1 The Privity of Contract Rule 116
9.2 The Privity Rule, Limits on Freedom of Contract,and the Well-Being of Third Parties from the Rawlsian Perspective 118
9.2.1 Donoghue v. Stevenson 118
9.2.2 The Economic Analysis of Law 120
9.2.3 The Rawlsian Framework 122
9.3 Are Third Parties Bound? If So, How? 126
9.3.1 Introduction 126
9.3.2 Economic Loss and the Exclusionary Rule 128
9.4 Inducing Breach of Contract 134
9.4.1 Before and after Lumley V. Gye 134
9.4.2 Theoretical Discussion 138
9.5 Contracts for the Benefit of Third Parties 142
9.5.1 Introduction 142
9.5.2 Historical Account 144
9.5.3 Current Law 149
9.5.4 Theoretical Discussion 152
9.6 Final Thoughts 156
10 Material Nondisclosure, Corrective Justice, and the Division of Responsibility 157
10.1 Promises and Precontractual Disclosure: Robust Corrective Justice and Material Disclosure 160
10.2 Ramsay on Nonrobust Corrective Justice and Material Nondisclosure 163
10.3 The Division of Responsibility and Material Nondisclosure 166
10.4 Final Thoughts 169
Acknowledgments 171
Bibliography 173
Index 179