Examples of Holmesian Contracts?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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7 Responses

  1. Archit Shah says:

    cell phone contracts

  2. Dave says:

    Hmmm…contracts to give AIG executives bonuses, perhaps?


  3. Lawrence Cunningham says:

    An easy specific one that follows from your examples: rental car agreements requiring drivers to obey all driving regulations, including speed limits.

    An exception to one of yours: a contractor’s duty to finish a job on time, unless the contract contains a clause making time of the essence.

    Some more general categories that go well beyond your examples follow. I may be emphasizing law too much, so please forgive me if they’re not what you are looking for, but I think the law reflects some moral sensibility in the background:

    1. Contracts containing enforceable liquidated damages clauses.

    2. Consruction contracts that contractors “substantially perform,” with deviation from strict performance compensated for in money damages.

    3. Goods contracts in active functioning markets where an aggrieved party easily can cover and obtain the contract-cover differential as damages.

    4. Contracts where the aggrieved party is otherwise obliged to mitigate damages so that they are not recoverable for breach.

    5. Purported contracts that are unsupported by consideration, such as promises to make gifts that do not induce forseeable reliance.

    6. In the 18th and 19th centuries, perhaps, sobriety clauses? (E.g., Clark v. West?)

  4. A.W. says:

    Btw, Holmes’ formulation has always been incomplete. You have 3 options under a contract:

    1) perform

    2) breach and pay, orrrrr

    3) breach and try to weasel out of it in court.

    So really to make it sound like it is a binary, “either or” proposition is frankly simplistic. His comment about a “duty to keep a contract” presumes an obviousness of the duty that very often doesn’t exist. The real analysis in deciding to committ an efficient breach is a weighing of the cost/benefit of performance v. the likelihood of successful suit if you breach, plus any X factors present. in some cases it is so clear that it is a pure “cost of performance v. cost of breach” analysis, but i would say at least 33% of the time in my experience, there are good reasons to doubt the enforceability of contracts. and i live in VA where the obligation of contracts is alive and well.

  5. If you haven’t yet, you might look at empirical work by Tess Wilkinson-Ryan (Penn JD/PhD or almost), who has looked specifically at people’s perceptions of the morality of contract breach. I’m pretty sure she has a few papers on SSRN.

  6. Jeff Lipshaw says:

    I’d add two more alternatives to A.W.’s list:

    4. Refuse to perform on the grounds that the other party breached.

    5. Interpret the words of the agreement not to be inconsistent with your present conduct. This is slightly different than A.W.’s “3” because while you concede it’s possible that the other party will call what you are doing a breach, you’re not “breaching and weaseling.” You are simply weaseling. But weaseling is what everybody does.

    As to my “5,” I completely concur with A.W.’s observation that law professors (and I think here Holmes was speaking ex podium) grossly oversimplify contract breach, but worse, assume a determinacy to language that wholly puts aside issues of interpretation. A.W.’s practical observation is what I (as a long-time practitioner) tried to reconcile with the theory and doctrine in The Bewitchment of Intelligence, Language and Ex Post Illusions of Intention, 78 Temp. L. Rev. 99 (2005).

  7. Bruce Boyden says:

    I think Dave’s (1) can probably be expanded to all consumer form agreements. I don’t think the drafters are all that insulted when they’re breached, even if they argue strenuously that the contract should be enforced. Indeed, the fine print that accompanies such agreements indicates the level of concern that the drafter has that the terms are actually followed (as opposed to enforced).