The Choice Theory of Contracts

This concise landmark in law and jurisprudence offers the first coherent, liberal account of contract law. The Choice Theory of Contracts answers the field's most pressing questions: what is the 'freedom' in 'freedom of contract'? What core values animate contract law and how do those values interrelate? How must the state act when it shapes contract law? Hanoch Dagan and Michael Heller - two of the world's leading private law theorists - show exactly why and how freedom matters to contract law. They start with the most appealing tenets of modern liberalism and end with their implications for contract law. This readable, engaging book gives contract scholars, teachers, and students a powerful normative vocabulary for understanding canonical cases, refining key doctrines, and solving long-standing puzzles in the law.

Table of Contents:
Preface; Acknowledgements; Introduction; Part I. Autonomy as a Contract Value: 1. The challenge of autonomy; 2. Promise theory; 3. Transfer theory; 4. Recovering autonomy; Part II. The Goods of Contract: 5. Utility; 6. Community; Part III. The Choice Theory of Contracts: 7. Contractual freedom; 8. How contract values relate; 9. Contract spheres; 10. Contract types; 11. Market for new types; 12. Choice theory in practice; Conclusion; Notes; Index.

About the Author :
Hanoch Dagan is one of the world's leading private law theorists. He is the Stewart and Judy Colton Professor of Legal Theory and Innovation and former dean of the Tel Aviv University Faculty of Law. Dagan has written five books across the landscape of private law topics and has published over seventy articles in major law reviews and journals. His most recent book is Reconstructing American Legal Realism and Rethinking Private Law Theory (2013). Michael Heller is one of America's leading authorities on property. He is the Lawrence A. Wien Professor of Real Estate Law and former Vice Dean for Intellectual Life at Columbia Law School. In The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008), Heller sets out a market paradox that he discovered: private ownership usually creates wealth, but too much ownership has the opposite effect - it creates gridlock.

Review :
'For the past four decades contract theorists have debated the relative merits of welfarist and moral theories of contract. In The Choice Theory of Contracts, Dagan and Heller offer an imaginative and original argument that seeks to accommodate these two seemingly irreconcilable normative views. By situating contractual freedom as the foundation of both utilitarian and communitarian contract norms, Dagan and Heller seek a grand accommodation in which the state creates choice preserving defaults. In the process, they provide the uninitiated reader a lively and very accessible review of contemporary contract theories.' Alan Schwartz and Robert E. Scott, Yale Law School and Robert E. Scott, Alfred McCormack Professor, Columbia Law School 'Dagan and Heller's The Choice Theory of Contracts addresses a central challenge of contract theory: the factual diversity and normative complexity of our law of contracts. The authors show the limits of leading monothetic theories, identify a set of values contract law can and should serve, and propose novel design options lawmakers might use to realize those values. The Choice Theory of Contracts is a major work, and essential reading for anyone who wants to think seriously about contemporary contract law and theory.' Gregory Klass, Georgetown University Law Center, Washington, DC 'The book's argument for a free choice among a range of attractive contract types constitutes a highly innovative shift in contract theory. In doing so, it also makes an important contribution to the field, which is attractive for theorists and lawmakers on either side of the Atlantic.' Martijn Hesselink, University of Amsterdam 'The Choice Theory of Contracts is an elegant and subtle book. Dagan and Heller's organizing idea - that contract law serves self-determination, but in various ways and through a range of distinctive contract types - will give the book a free-standing place in the history of legal thought; their close readings of prior work will intrigue contemporary scholars; and their vivid treatments of concrete contract types will interest and profit students.' Daniel Markovits, Yale University, Connecticut 'The Choice Theory of Contracts achieves what many had assumed was impossible: a theory that defends contract law as a distinctive legal institution yet which takes as its starting point the existence of diverse modes of contracting, diverse reasons for entering contracts, and diverse justifications for legally supporting contracts. The Choice Theory is a landmark in contract scholarship.' Stephen A. Smith, McGill University, Canada 'Dagan and Heller emphasize the interpersonal dimension of freedom in contractual relations. In a world where contract is ever stronger entrenched through public and private regulation, this book comes as an urgently needed reminder to the preservation of freedom of contract as a social-political project.' Hans-Wolfgang Micklitz, European University Institute, Florence