Working through the law book on contracts, came across another interesting quote by the often-cited Professor Llewellyn (some googling suggests he may have been Karl Lewellyn of UChicago):

• Instead of thinking about 'assent' to boiler-plate clauses, we can recognise that so far as concerns the specific, there is no assent at all. What has in fact been assented to, specifically, are the few dickered terms, and the broad type of the transaction, and but one thing more. That one thing more is a blanket assent (not a specific assent) to any not-unreasonable or indecent terms the seller may have on his form, which do not alter or eviscerate the reasonable meaning of the dickered terms. (cited as "Lewellyn. The Common Law Tradition: Deciding Appeals 370-71 (1960)")

The primary topic of the chapter I'm on is when contracts are (un)enforcable by various reasons - the right to private contract is considered a default and general foundation of modern society (by the authors), but several categories of exceptions are identified and some general concerns as to the changing foundations of the role of contract due to unnegotiated "form contracts" are mentioned.

I should nuance that statement above -- while the book may move forward under certain grounds on the structure of the public interest and how the law is to be applied/enforced, it is written so as to generally mention opinions on alternatives from various groups and people who suggest alternatves.

The idea of contracts as being both a private notion of honour and as a legal instituton is one which we might want to divorce - in some cases the law might not "get it right" and we might feel wronged in cases when a contract goes to court - the existence of grudges that exist in the private sphere that do not in the public/legal sphere (I imagine when credit institutions become involved, which are a kind of legal form of reputation, things get much more interesting) make action depending on them risky. There are some cases outlined in the law book where contracts have been signed where one side had no intent to hold the bargain and they brought suit at a later time to void the contract where they did so with good reason because of specific circumstance, but I wonder how many private grudges a system can afford before it grinds to a halt for reasons invisible to outsiders. Presumably this depends on the actors.

Reading law books makes me feel like I've "neglected the engineers" when reading about political theory - while I think Locke, Marx, Rawls, etc are more important for painting what is and what should be, by their perspectives, with broad strokes, if I had had a set of law books when younger (ideally sets on other legal traditions as well - for awhile I had my eye on Mary Ann Glendon's book on comparitive legal traditions before I found that she's very conservative and has strong ties to the Vatican) I probably would've moved a different path and never gone through some periods...

Edit: Guess I decided to post this part after all.. Recently had a conversation with an Orthodox friend who was bothered by another Orthodox guy "being seen" with a girl he's not involved with (there's more nuance, but that's unimportant). In the sections of Orthodox society this person floats in, it's seen as improper to hang out with a gal one's unmarried to, as a guard against indecent behaviour and perhaps because it's improper in itself. I don't share this attitude, obviously because I'm not orthodox (or religious), and not by analogy, partly because my sexuality would make it ridiculous, partly because I think the lesser socialisation created by gender segregation is unfortunate enough that the costs of lesser guards against inappropriate behaviour are worth paying, and partly because I think that a great way to start relationships is to hang out socially a few times first. The third point, I understand, doesn't necessarily fit well with the perspectives on dating some portions of the Orthodox community (including at least the Yeshiva-centric and the Hardeim) take. I think dating, both casual and not, are worthwhile, and both semi-casual sex (in the context of a relationship) and casual sex should be considered legitimate - the latter may be unwise depending on emotional context, but lack of sexual/emotional intimacy may be equally unwise and these need to be considered together. "Saving oneself for marriage" is as wrongheaded, I think, as deciding not to enjoy life in other ways (e.g. food, art, music). That said, for those of us who are aimed at monogamy (as I am, but not everyone I've known is), there are boundaries that many of us value in our relations which both help us feel secure and help preserve our relationship with our partner (be they long-term or not). My conversation with him got me thinking about precisely what those boundaries are from my perspective as well as those of people I know. I believe males and females who are coupled should be free to have friendships with both genders outside of their relationship, and the existence of the relationship should create obligations primarily to avoid acts and situations that should be construed as pre-dating/dating/relationship-type, in order to provide reasonable actual and emotional security of the relationship. Casual hanging out and going to restaurants (provided the atmosphere isn't one of those super romantic ones) seem fine, as does playing sport. Some types of social interaction, like going as a pair to opera, dance, or some other events seem a bit more iffy (as these are often "dating things"), and hanging out in the bedroom of someone of attracted gender, extended periods alone with them, etc, might be unacceptable. Still, it's interesting how arbitrary some of these things seem - people from different cultures seem to have various views either much less or much more open than mine.

Exhausted. Everything else is left as an exercise for the reader. That's all.

You're conflating principles of contract and tort, and neglecting the existence of the UCC. Lewellyn actually is a premier scholar, and a drafter of the code. His opinions on common law are good background reading to both legal history and legal theory on contracts, but in and of itself, it's not really where one would want to take as a starting point for present US jurisprudence.

The US Constitution itself is really the first "engineer," with respect to the right for private parties to contract:

"No State shall...pass any Law impairing the Obligation of Contracts, ..."

As you probably already know, the Constitution itself is the controlling body of law in the states, and all other statutes and rules of law have to comport therewith.

Anyhow, if you're reading an actual law school text, you should be aware of how they're formatted -- they start with "ancient" principles, and each squib applies the principle based on the contrasting facts of the cases. Law students, under the guidance of a highly educated professor, then go through these squibs and contrast based on facts, and take into account changes in law. Putting a finger in a casebook and pointing to a case or a statement will very likely not yield an accurate picture. Its probably hard to figure out the format of a law text even if you read through beginning to end -- nothing's explained (that, and being guided to do this for 3 plus years in law school is how you're supposed to learn to think like a lawyer...)

As this relates to contract law -- common law contract law has been superseded by the UCC for sales, leases, negotiable instruments...and other statutes deal explicitly with other contractual issues. There really is no common law contract law anymore (depending on how you define it). You also have to take into account tort law, which is deceptively similar, but not at all the same thing...

/Debb

PS: I am not knocking your opinions...just trying to give you a primer on the facts :)