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Regulating Contracts

ISBN13: 9780198298175
ISBN: 019829817X
Published: September 1999
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £74.00
Paperback edition , ISBN13 9780199258017

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Using an interdisciplinary approach involving economics, sociology, and law, this work explores fundamental questions about contracts and legal regulation. What kind of social relation do contracts create, or, more precisely, how do contracts cover social interaction? How are contractual relations or, more generally, markets constructed? Does the law play a significant role in contractual practices, and in particular what do lawyers, courts, and legal sanctions contribute to the contractual social order? For what distributive purposes does the law attempt to regulation?;The conclusions of this study suggest that the law plays an insignificant role in the construction of markets, and that law and lawyers could provide better assistance by using indeterminate regulation that permits the recontextualization of legal reasoning. Legal regulation of contracts concerned with redistributive tasks,such as redress of unfairness, countering unjust power relations, and access to justice, is evaluated both with respect to the objectives of regulation and the search for the most efficient and efficacious form of regulation.

PART 1: INTRODUCTION; 1. The Tasks for Regulating Contracts; 2. The Meaning of Contract:- How Contract Thinks About Association; Contractualization of Social Life; Meaning of Contractual Relations; Embeddedness
PART 2: THE NEW REGULATION; 3. The Discourses of Legal Regulation:- Normative Complexity; Self-reference and Closure; The Doctrinal Classification System; The Collision of Private Law with Public Regulation; The Productive Disintegration of Private Law; 4. The Capacity of Private Law:- Private Law as Regulation; Reflexive Regulation; Standard Setting; Monitoring and Enforcement; Conclusion
PART 3: REGULATION IN THE CONSTRUCTION OF MARKETS; 5. The Construction of Markets:- Trust and Sanctions; Markets Without a State; The Construction of Trust; The Construction of Non-legal Sanctions; The Significance of Legal Sanctions; The Adjudication Process; Conclusion; 6. Rationality of Contractual Behaviour:- Three Frameworks of Contractual Behaviour; The Non-Use of Contracts; Relational and Discrete Contracts; Reasonable Expectations; 7. Planning and Co-operation:- Lawyers as Engineers; Informality in Business Dealings; Incompleteness in Planning Documents; Risk; Insufficient Specificity of Self-regulation; Flexibility; Conclusion; 8. Formalism and Efficiency:- The Form of Legal Doctrine; Closure and Expectation; Commercial Arbitration; Reasoning in the Common Law; The Virus of Formalism; A Transformation in Legal Doctrine?; 9. Contract as Thing:- Money; Formality; Legal Pluralism; Futures Contracts; Club Markets; Self-regulating Associations
PART 4: DISTRIBUTIVE TASKS OF REGULATION; 10. Power and Governance:- Mass Contracts; Principal and Agent; Contract and Organisation; Conclusion; 11. Unfair Contracts:- The Illusion of Unfairness; Open Texture Rules; Regulatory Backfiring; The Adequacy of Regulating Market Failure; Conclusion; 12. Quality:- Efficient Level of Quality; Form of Standards; Monitoring and Enforcement; Conclusion; 13. Government by Contract:- Public Services and the Market Mechanism; The Problem of Co-operation; The Problem of Quality; Quasi-Contract in Government; Conclusion; 14. Dispute Settlement:- The Taste for Litigation; Vindication of Contractual Rights; Access to Justice; For Settlement; 15. Conclusion; Bibliography; Table of Cases; Table of Statutes; Index