{"title":"Courts and the Tort-Contract Boundary in Product Liability","authors":"P. Rubin","doi":"10.2139/SSRN.157359","DOIUrl":"https://doi.org/10.2139/SSRN.157359","url":null,"abstract":"In this Article I address the appropriate source of liability in cases of injury between parties with a pre-injury contractual relationship. This applies to product liability (for direct purchasers, not for injured third parties) and also to medical malpractice. Since the parties do have a pre-injury relationship, they could contract ex ante for damages and liability standards through warranties and disclaimers; if they did so, then they would probably choose standards so that many fewer cases would be filed. The current legal system, behaving consistently with arguments made by Atiyah and Gilmore, instead treats these injuries as torts and handles them through product liability, leading to many additional cases. This means that consumers and producers are forced to accept the terms imposed by the courts, and there is no room for variation. The literature arguing for contractual treatments of such injuries is voluminous as is the literature arguing for the now traditional treatment as a tort, a very small sample of which is discussed below.","PeriodicalId":334584,"journal":{"name":"The Fall and Rise of Freedom of Contract","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117276455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Free Contracting in Bankruptcy","authors":"F. Buckley","doi":"10.1215/9780822380122-018","DOIUrl":"https://doi.org/10.1215/9780822380122-018","url":null,"abstract":"This Comment argues for free bargaining in bankruptcy reorganizations and the enforcement of waivers of Chapter 11. Bankruptcy opt-outs would permit the parties to adopt risk- sharing strategies denied them by Chapter 11. This would correct a misincentive problem identified by Alan Schwartz, and would do so more effectively than Schwartz claims. More importantly, bankruptcy opt-outs would permit the parties to transfer control of the firm to creditors on default. Governance strategies of this kind police management misbehavior more effectively than the risk-sharing theories proposed by Schwartz and others.","PeriodicalId":334584,"journal":{"name":"The Fall and Rise of Freedom of Contract","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1997-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133548387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Contracts Small and Contract Large: Contract Law through the Lens of Laissez-Faire","authors":"R. Epstein","doi":"10.1215/9780822380122-002","DOIUrl":"https://doi.org/10.1215/9780822380122-002","url":null,"abstract":"This paper examines and rejects the commonplace view that the doctrines of classical contract law (offer and acceptance, consideration, damages) were logically linked to the political philosophy of laissez-faire. Many writers (Grant Gilmore, Patrick Atiyah, Lawrence Friedman) attribute much of the rigid and mechanical nature of nineteenth century contract law to its affinity with laissez-faire. In this paper I reject that connection. The key distinction is that between security of exchange and freedom of contract. Laissez-faire is strongly committed to both, but most of contract law only requires the former without the latter. Security of exchange ensures that the enforcement of legal contracts when, as commonly is the case, one party must perform before the other. Freedom of contract guarantees a broad sphere in which voluntary arrangements are permissible. Most contract law is devoted to the former, which can be supported even by those who favor extensive regulation of economic transactions. The strength or weakness of that law is largely determined by instrumental questions of whether they promote stable contracting over time.","PeriodicalId":334584,"journal":{"name":"The Fall and Rise of Freedom of Contract","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1996-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115868623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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