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Preface
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xi
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1 Philosophical Problems of Contract Law
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1
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Suggested Further Reading
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3
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2 History and Sources
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4
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A. Roman Law
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5
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B. English Writ System
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6
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C. The Range and Limits of Contract Law
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10
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D. Sources of Contract Law
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11
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1. Domestic Law
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11
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2. International Sources
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13
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E. Theoretical Implications
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15
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Suggested Further Reading
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16
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3 Formation
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18
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A. Offer and Acceptance
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18
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1. The Nature of Offers
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19
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2. Timing of Offers and Acceptances
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21
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3. Offers for Unilateral Contracts
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23
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4. Objective and Subjective
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24
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5. Battle of the Forms
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25
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6. Electronic Contracting and Rolling Contracts
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28
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7. Open Terms and Agreements to Agree
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30
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8. Construction Bid Contracts
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31
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B. Consideration
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32
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1. Historical Origins
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32
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2. Current Doctrine
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34
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C. Statute of Frauds
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37
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D. Other Grounds for Recovery
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40
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1. Promissory Estoppel
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40
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2. Promissory Restitution
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42
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3. Restitution/Unjust Enrichment
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42
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E. Formation-Based Defenses
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43
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1. Misrepresentation and Nondisclosure
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44
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2. Mistake
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46
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3. Duress
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47
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4. Undue Influence
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48
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5. Minority
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49
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6. Mental Incapacity
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50
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7. Intoxication
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51
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F. Theoretical Implications
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51
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Suggested Further Reading
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52
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4 Interpretation
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54
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A. Objective and Subjective
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54
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B. Default Rules, Incomplete Contracts, and Implied Terms
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55
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C. Rules of Interpretation
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57
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1. Canons of Interpretation
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58
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2. Plain Meaning
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58
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D. Parol Evidence Rule
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59
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1. The Rule(s)
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59
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2. Trusting Writings versus Trusting Face-to-Face Promises
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65
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E. Warranties
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66
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F. Interpretation and Fairness
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67
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G. Choice of Law and Conflict of Laws
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68
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H. Theoretical Implications
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69
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Suggested Further Reading
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69
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5 Performance
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71
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A. Conditions
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71
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1. On-Off Switches
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71
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2. Excuse of Failure of Condition
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72
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B. Responses to Current and Future Problems in Performance
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74
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1. Prior to Scheduled Performance: Anticipatory Repudiation and Adequate Assurances
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74
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2. Failures in the Middle of Performance
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76
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3. Modification
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77
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4. Failure in Completed Performance: Substantial Performance, Divisibility, Restitution
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79
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C. Impossibility, Impracticability, and Frustration of Purpose
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81
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D. Good Faith
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83
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E. Theoretical Implications
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85
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Suggested Further Reading
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85
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6 Enforcement and Remedies
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87
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A. Substantive (Fairness) Constraints and Public Policy
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87
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1. Fairness Constraints
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87
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2. Unconscionability
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90
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3. Public Policy
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92
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B. Limitations on Remedies
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92
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1. Causation
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93
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2. Certainty
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93
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3. Foreseeability
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93
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4. Mitigation
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94
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5. Unrecoverable Damages
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98
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C. Measuring Damages: Expectation, Reliance, Restitution
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99
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1. Expectation Damages
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99
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2. Reliance Damages
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100
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3. Restitution
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101
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D. Special Cases
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102
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1. Cost of Completion versus Diminution of Value
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102
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2. Restitution for the Breaching Party
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104
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E. Equitable Remedies
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106
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F. Agreed Remedies
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107
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G. Third-Party Rights and Duties
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110
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1. Third-Party Beneficiary
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110
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2. Assignment and Delegation
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112
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H. Bilateral Structure, Corrective Justice, and Optimal Incentives
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113
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I. Efficient Breach and the (A)morality of Contract Law
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115
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J. Theoretical Implications
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117
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Suggested Further Reading
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117
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7 Special Categories of Contract Law
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119
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A. Employment Agreements
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119
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B. Insurance Law
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121
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C. Landlord-Tenant
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122
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D. Real Estate Agreements
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122
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E. Franchise Agreements
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123
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F. Premarital Agreements
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124
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G. Government Contracts
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125
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H. Theoretical Implications
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126
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Suggested Further Reading
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126
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8 Modern Contract Law Practices: Questions of Legitimation and Moral Obligation
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128
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A. The Gap between Ideal and Reality
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128
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B. Theories of Contract Law
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132
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C. Theory Meets Practice
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136
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D. Rethinking Contract Law
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138
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E. The Moral Obligation to Keep Contracts
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141
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F. Implications for Government Regulation
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144
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Conclusion
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145
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Suggested Further Reading
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146
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9 How Many Contract Laws?
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147
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A. The History of General Theory
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147
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B. The Nature of General Theory
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148
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C. General Contract Law
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152
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D. Contract and Law
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154
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E. Consequences
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155
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F. Note on Proving a Negative
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155
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G. Note on Rights and Remedies
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156
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H. One or Many Theories (Revisited)
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159
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1. Essential and Accidental
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159
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2. Deciding between General and Particular Theories
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159
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3. Why Does It Matter?
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160
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Conclusion
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161
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Suggested Further Reading
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162
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Bibliography
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163
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Table of Cases
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185
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Statutes and Restatements
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193
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Index
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197
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