Restatement (Second) of Contracts

The Restatement (Second) of the Law of Contracts is a legal treatise from the second series of the Restatements of the Law, and seeks to inform judges and lawyers about general principles of contract common law. It is one of the best-recognized and frequently cited legal treatises[1] in all of American jurisprudence. Every first year law student in the United States is exposed to it, and it is a frequently cited non-binding authority in all of U.S. common law in the areas of contracts and commercial transactions.[2] It is a work without peer in terms of overall influence and recognition among the bar and bench, with the possible exception of the Restatement of Torts. The American Law Institute began work on the second edition in 1962 and completed it in 1979; the version in use at present has a copyright year of 1981.[3]

For an explanation of the purpose of a restatement of law, see Restatement of the Law.

Use and commentary

Legal scholars and jurists have commented extensively on the Restatement, both in contrasting it with aspects of the first Restatement, and in evaluating its influence and effectiveness in reaching its stated objectives. It is in this context of direct review that one can find numerous arguments both favoring and criticizing some aspects of the Restatement as an independent source of legal scholarship.[4][5][6][7][8]

Although several sections of the Restatement contained new rules which sometimes contradicted existing law, courts citing these sections have predominantly adopted the Restatement's view, citing them as a court would cite statute or code.[9]

Far more common, however, is the practice of citing the Restatement to clarify generally accepted doctrine in every major area of contract and commercial law. It is in this context of legal research that one can find the Restatement used as direct substantiation and persuasive authority, to validate the arguments and interpretations of individual legal practitioners.[10][11]

Legacy

Although the Restatement of Contracts is still an influential academic work, certain aspects have been superseded in everyday legal practice by the Uniform Commercial Code. Specifically, the UCC has replaced the Restatement (Second) of Contracts in regard to the sale of goods. The Restatement (Second) of Contracts remains the unofficial authority for aspects of contract law which find their genesis in the common law principles of the United States and, previously, England.

See also

Notes

  1. ↑ Acceptable citation format under the Bluebook: "Restatement (Second) of Contracts § ___ (1981)." The Bluebook: A Uniform System of Citation § 12.8.5 (Columbia Law Review Ass'n et al. eds., 17th ed. 2000)
  2. ↑ Bauman, Richard (2002). Ideology and Community in the First Wave of Critical Legal Studies. Toronto: University of Toronto Press. ISBN 0-8020-8341-2.
  3. ↑ Beale, Hugh (2002). Contract Law: Casebooks for the Common Law of Europe. Oxford: Hart Pub. ISBN 978-1-84113-237-2.
  4. ↑ Interpretation and Legal Effect in the Second "Restatement of Contracts" Robert Braucher Columbia Law Review, Vol. 81, No. 1 (Jan., 1981), pp. 13-18
  5. ↑ Jacobs, Legal Realism or Legal Fiction? Impracticability Under the Restatement (Second) of Contracts, 87 Com. L.J. 289 (1982).
  6. ↑ Braucher, Offer and Acceptance in the Second Restatement, 74 Yale L.J. 302 (1964).
  7. ↑ Kelly, The Codification of Contract Law in the Twentieth Century, 88 Dick. L. Rev. 289 (1984).
  8. ↑ Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L. Rev. 23 (1985).
  9. ↑ Gregory E. Maggs, Ipse Dixit: The Restatement (Second) of Contracts and the Modern Development of Contract Law, 66 Geo. Wash. L. Rev. 508 (1998).
  10. ↑ Restitution in the Second "Restatement of Contracts"Joseph M. PerilloColumbia Law Review,Vol. 81, No. 1 (Jan., 1981), pp. 37-51
  11. ↑ Contracts: Expanded Application of Promissory Estoppel in Restatement of Contracts Section 90: Hoffman v. Red Owl Stores, Inc. Michigan Law Review, Vol. 65, No. 2 (Dec., 1966), pp. 351-358

References

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