REVIEWS
| Date | 01 March 1976 |
| Published date | 01 March 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01455.x |
REVIEWS
THE
DEATH
OF
CONTRACT.
By
GRANT GILMORE.
[Ohio
State
University Press.
1974.
151
pp.
$8.00.1
A
VISITOR
from another world who was asked to devise
a
set of rules
applicable to the area we call
‘‘
contract,” would almost certainly begin by asking
about the losses which the rules would be intended to compensate.
He
might
well analyse those losses into categories such
as
reliance, restitution and
expectancy
as
a
first step in working out his system of rules. The details of
the rules he might arrive at are unimportant, it is the procedure of working
from loss to rule which is the thing. On the whole, this was the traditional
common law way
of
doing things. One of the most remarkable jurisprudential
innovations which took place in the nineteenth century in both this country
and the United States in the field of contract, was
a
tendency to do precisely
the reverse
i.e.
to
start
with the rules and to apportion the
loss
according
to
a
systematic deduction from those rules. This of course was
a
traditional
approach for Continental jurists. The importation of this tradition is an
event of the greatest importance. Its first manifestation is
a
rash
of
treatises
on contract,
a
subject which before the nineteenth century was singularly
lacking in literature (see Simpson
(1975) 91
L.Q.R.
247).
Since these treatises
are the work for the most part of practising lawyers, the appearance
of
this
literature probably is
a
reflection
of
the rapidly changing economic climate
which was giving an entirely new significance to the protection of the
“
expectation interest.” Their Continental borrowings are probably
a
reflec-
tion
of
changes which had taken place in the education of those entering
the legal profession in the eighteenth century. In truth,
so
far
as
the common
law world is concerned these treatises may be said to have invented
“
Contract.”
Anyone reading Professor Gilmore’s amusing and entertaining book with
no knowledge of his background, is likely to find himself misled into believing
that what we may call
‘‘
the game of contract
”
was discovered somewhere
around the last quarter of the nineteenth century. Professor Gilmore’s
account is divided into two parts: discovery
of
“
Contract
”
and decline and
fall of
“
Contract.”
‘‘
Contract
”
he alleges, was the discovery
of
Christopher
Columbus Langdell, first Dean
of
the Harvard Law School and pioneer
of
the
‘‘
Case Method
”
(on whose origins and application in Langdell’s hands
Professor Gilmore is highly entertaining). The philosophical basis for the
theory was duly provided by Holmes in “The Common Law,” and the
detailed implications worked out by Williston in his monumental treatise of
Contracts
”
in
“
meticulous, although not always accurate, scholarly detail.”
One finds it very difficult to know what to make of this (not least because
Holmes is in
pari
defictu
with Langdell who he thought represented the
powers of darkness
“
he is
all
for logic
”).
Professor Gilmore alleges Holmes
substituted an
“
objectivist
”
approach
for
the
“
subjectivist
”
approach the
courts had been following “almost instinctively
”
up to that time. Such an
assertion makes one wonder whether Professor Gilmore is really aware of
what the
“
subjectivist: objectivist
”
debate in “The Common Law
”
is all
about. Holmes’s
“
objectivism
”
is only comprehensible
in
terms of his rejec-
tion of the “subjectivism
”
of Hegel. It seems improbable that Holmes (whose
best remembered statement
is
“The life of the law has not been logic: it
has been experience”) intended to set up an alternative set
of
premises from
which to build yet another law
of
contract. Langdell and Holmes did not
bring about the passing
of
the
“
Golden Age
”:
it had passed, at least in this
drea, long before the last quarter
of
the nineteenth century.
229
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