The rules of different legal systems

Many contracts involve more than two persons. The law of contracts provides special rules for regulating claims by multiparty plaintiffs or claims against multiparty defendants, or for determining rights among the parties. Multiparty problems arise in other contexts as well. There is the problem of whether the immediate parties to a contract can enter into an agreement that will confer rights upon a person not an original party to the contract. Probably because the dogmatic structure of contract law was largely formed on the model of the simpler two-party situation, and because the contract for the benefit of third parties did not have great practical importance until such relatively modern developments as the emergence of life insurance, many systems of contract law have encountered difficulty in working out the relationship between the third party and the underlying contract. English law took the view that, as a rule, persons cannot acquire a right on a contract to which they are not a party. Some of the problems posed are difficult to resolve: under what circumstances and to what extent should the third party control the underlying contract when, for example, the original parties desire to rescind or modify it?

Another variation of the party problem is presented by efforts to add or substitute parties to a contract. In the absence of an express regulation of the problem in the basic contract, the law works with the notion of the presumed intention of the contracting parties, based on considerations of fairness and practicality. A contracting party cannot, in principle, assign to another its right under a contract if the assignment would result in a significant change in the burden assumed by the other contracting party. A contractual right to receive money or goods is a different matter; it can ordinarily be assigned because the resulting burden on the person under obligation is not great, and because society as a whole benefits from having this flexible economic and legal instrument.

One problem of contract law that has been mentioned above deserves further consideration—the problem of interpretation. Many rules of contract law are simply presumptions, based on experience and tradition, as to what the parties ordinarily intend; if they clearly intend otherwise, the rules are not mandatory. Problems of interpretation frequently arise with respect to the particulars of a given agreement; thus the court seeks to determine what the parties actually had in mind. The effort to ascertain intention may encounter difficulties arising from the law of evidence. Many legal systems limit the use of testimonial evidence to explain the essential elements of a written contract.

Modern commercial practice relies to a growing extent on arbitration to handle disputes, especially those that arise in international transactions. There are several reasons for the growing use of arbitration. The procedure is simple, it is more expeditious, and it may be less expensive than traditional litigation. The arbitrators are frequently selected by a trade association or business group for their expert understanding of the issues in the dispute. The proceedings are private, which is advantageous when the case involves trade or business secrets. In many legal systems, the parties can authorize arbitrators to base their decision on equitable considerations that the law excludes. Finally, when the parties are from different countries, an international panel of arbitrators may offer a greater guarantee of impartiality than would a national court. Despite these advantages of arbitration, the development of contract law may suffer considerably by a withdrawal from the courts of litigation involving some of the most significant and difficult problems of the present day, all the more so because the reasoning in arbitral awards is usually not made public.

Trade and commerce flow increasingly across national and state boundaries. In response to this there have been many efforts to unify the traditional legal systems. In the United States, the Uniform Commercial Code has replaced earlier uniform statutes such as the Sales Act and the Negotiable Instruments Law; by 1990 it had been adopted by every state. Internationally, the decade of the 1960s saw significant progress toward uniform regulation of the law of sales. The creation of a uniform body of substantive rules is, of course, easiest when the communities involved have roughly similar rules and principles. In addition, the greater the volume of multistate transactions, the greater the pressure for uniform regulation. It is understandably easier to achieve a Uniform Commercial Code within the United States than to create such a system internationally.

When a transaction has a significant relationship with more than one legal order, difficult problems of private international law often arise with respect to which law shall govern. A kind of halfway point between legal diversity and unification—the creation of uniform rules for choice of law—is of some help, and in this area the Hague Conference on Private International Law has done significant work.

E. Allan Farnsworth, “The Past of Promise: An Historical Introduction to Contract,” Columbia Law Review, 69(4):576–607 (April 1969), is a survey of the development of contract law from its beginnings in primitive societies. C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract (1949, reprinted 1970), is a historical treatment of the common law of contract. Treatises on Anglo-American contract law include: John D. Calamari and Joseph M. Perillo, The Law of Contracts, 3rd ed. (1987); G.C. Cheshire and C.H.S. Fifoot, Cheshire and Fifoot’s Law of Contract, 10th ed. by M.P. Furmston (1981); Arthur Linton Corbin, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vol. in 12 (1950–51); and Samuel Williston, A Treatise on the Law of Contracts, 18 vol., 3rd ed. by Walter H.E. Jaeger (1957–78). A discussion of French and German contract law is found in Arthur Taylor Von Mehren and James Russell Gordley, The Civil Law System, 2nd ed. (1977). A classic discussion of the law of contract damages is found in L.L. Fuller and William R. Perdue, Jr., “The Reliance Interest in Contract Damages,” parts 1 and 2, Yale Law Journal, 46(1):52–96 (November 1936), and 46(3):373–420 (January 1937). See also Hans Smit, Nina M. Galston, and Serge L. Levitsky, International Contracts (1981).