It is widely agreed that no theory of contract is fully adequate—all theories face formidable descriptive, normative and conceptual difficulties. Why has contract scholarship failed to produce an acceptable theory of contract law, even after several decades of nuanced and sophisticated theoretical efforts? This Article answers this puzzle by offering a novel meta-theory of contract scholarship that focuses on the aesthetics of various contract theories. An aesthetic commitment, under this understanding, is a pre-theoretical presupposition regarding the form (as opposed to the substance) of legal discourse. The article argues that jurists harbor several different aesthetics and often employ them interchangeably and without noticing. The continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct, contract theories, which are based on different aesthetics, are destined to continue struggling indefinitely. The article explores four leading contract theories—promissory, reliance, economic and pluralistic conceptions of contract—and illustrates the manner each theory’s substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. In so doing, the article shows how the aesthetic point-of-view can better explain these theories’ specific strengths, weaknesses and disagreements, and it grounds its prediction that contract scholarship is not likely to produce a widely accepted theory any time soon.

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In the face of powerful criticism, the “reliance interest” continues to hold an impactful position in judicial and academic treatment of contract damages. And yet, the theoretical foundation of reliance damages for breach of contract remains unsettled. This Article exposes the inability of the reliance scholarship to coherently explain and justify the widespread judicial practice of awarding reliance damages in lieu of expectation damages. Considering this failure, the Article offers a hitherto overlooked promise-based conception of the reliance interest. Under reliance-as-promise, the right to be reimbursed for one’s reasonably foreseeable performance costs is a secondary remedial right grounded in an implied contractual promise which the law attributes to every contracting party. When due to a total breach it becomes clear that the contract will not be performed, the background duty to reimburse comes into play. The Article presents and develops this promise-based account. It claims that reliance as promise can provide a more coherent normative and explanatory account of the phenomenon of awarding reliance damages for breach of contract. Apart from its explanatory force, and the normative support it can find in major contract theories, reliance as promise finds support in basic psychological insights and in the findings of a preliminary empirical study conducted by the authors.

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When courts award reliance damages as a standalone remedy for breach of contract, what precisely are they doing, and why? For decades, this seemingly straightforward question has sparked a surprisingly unsettled debate. Fuller and Perdue’s familiar taxonomy of contractual interests – expectation, reliance, and restitution – has long provided the conceptual framework for the law of contract remedies. Yet the theoretical foundations of their cornerstone remedy – reliance damages – remain elusive…

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The book offers a comprehensive and in-depth analysis of contract law in Israel. It addresses a range of issues, including: The Principle of Freedom of Contract, Contract Formation, Offer and Acceptance, Precontractual Liability and Remedies, Contract for Appearance Sake, Mistake and Deception, Exploitation and Duress, Illegal Contract, Contracts Interpretation and Supplementation, Conditional Contract, Impossibility, Impracticability, and Frustration.

Contributors: Gabriela Shalev, Efi Zemach

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