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TIM KAYE
dated damages clauses)
,
16
the primary way in which relational contracts
are regulated is actually through the law of (non-intentional) torts.
A Roadmap
This paper proceeds in the following way. Part II challenges, as a matter
of both practice and doctrine, the traditional conventional wisdom as to the
basis of the distinction between the laws of contracts on the one hand and
of torts on the other. Convention holds that contractual obligations are the
product of voluntary agreements, while the law of torts imposes obligations
irrespective of consent. However, I show not only that this dichotomy is in-
accurate in a significant number of real-life instances, but that each signif-
icant contractual doctrine is actually systemically indifferent to the parties’
own volition. This leads us to two alternative possibilities. Either there is
no significant difference between the laws of contracts and of torts, or else
there must be a different basis for the supposed distinction between them.
Part III advances five reasons for rejecting the thesis of a “merger” be-
tween contracts and torts. Having thus established that there is indeed a
material distinction between the laws of contracts and torts, Part IV pro-
ceeds to explain what that distinction really is. It argues that the true differ-
ence is that the law of contracts has a “formation phase,” which is not only
analytically distinct from the “performance phase” but also, as a matter of
practice, normally precedes it in time. The law of torts, by contrast, has no
16 Such devices led Macneil to refer to contracts utilizing them as “neo-classical” rather
than as corresponding with the fully classical view of discrete contracts. See Ian
Macneil,
Reflections on Relational Contract Theory after a Neo-classical Seminar
, in
I
D
C
: D
, R
N
C
ON
-
207 (David Campbell
et al
. eds., 2003).
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