¹ Mistake generally relates to facts existing at the time a contract is created. Impossibility and frustration involve facts that the parties expect, at the time the contract is created, to be true in the future. (The distinction between a mistake of existing fact and an erroneous prediction caneasily dissolve.) In general, a party who seeks to be excused from performing raises impossibility, while a party who seeks to be excused from making payment raises frustration. Treating these three categories as similar in important respects is common. E.g., Atiyah, P.S.An Introduction to the Law of Contract 4th ed. (Oxford 1989), pp. 234–262;Google ScholarCorbin, A.Corbin on Contracts (St. Paul 1960) § 1320; Farnsworth, E.A. Farnsworth on Contracts, 2d ed., (Boston 1990),Google Scholar ch. 9; Fried, CharlesContract as Promise (Harvard 1981), p. 58;Google ScholarGilmore, G.The Death of Contract (Columbus 1974), pp. 42–44, 81;Google ScholarWilliston, S.I Williston on Contracts, 4th ed. (New York 1990), pp. 34–38;Google Scholar Associated Japanese Bank (International) Ltd. v. Credit Du Nord S.A. [1989] 1 W.L.R. 255, 264 (addressing both mistake and frustration together). See Guest, A.G. (ed), Anson's Law of Contract, 25th ed., (Oxford 1979)Google Scholar (addressing frustration and impossibility together, without reference to their similarity to mistake cases); Treitel, G.The Law of Contract, 8th ed. (London 1991), p. 822Google Scholar (the comparison between frustration and mistake “is interesting and sometimes helpful; but it should not be pressed too far”).

² “Practical reason”, a now-renascent concept, is used here in the Aristotelian sense of reasoning that does not amount to deduction or formal entailment but identifies rational relationships among reasons with a view toward action. Most distinctions between practical and other modes of reasoning can be traced at least to foundations laid by Aristotle. See Aristotle, Nichomachea Ethics (Penguin 1953), VI, 2: 1139a26-31. For a brief history of practical reasoning, associated with phronesis, as compared with more formal deductive reasoning, associated with episteme, see Jonsen, A.R. and Toulmin, S., The Abuse of Casuistry: A History of Moral Reasoning (Berkeley 1988).Google Scholar

³ Professor Raz describes practical reason as focused on the relationships between reasons where each has some force: “the main task of the theory of practical reason is to establish what one has (prima facie) reason for doing and how to resolve conflicts of reasons and establish what one should do all things considered”. Joseph Raz, Reasons for Actions, Decisions and Norms, in Raz, J. (ed), Practical Reasoning (Oxford 1978), p. 11.Google Scholar

⁴ On power-conferring rules, see Hart, H.L.A., The Concept of Law (Oxford 1990), pp. 26–48,Google Scholar 77–79, 238–240; Raz, J., Practical Reason and Norms, (Princeton 1990), pp. 97–106.Google Scholar

⁵ For opposing views on whether contract law can or should advance the principles of distributiveor corrective justice, and overviews of the related literature, see, e.g., Kronman, A.T. “Contract Law and Distributive Justice” (1980)Google Scholar 89 Yale L.J. 472 (recasting most contract issues as questions of distributive justice); Lucy, W.N.R. “Contract as a Mechanism of Distributive Justice” (1989)Google Scholar O.J.L.S. 132 (arguing that contract law should not and cannot reasonably be used to advance the principles of distributive justice).

⁶ Professor Atiyah's history of contract law identifies three conceptions of contract that roughly parallel the three schools listed here. P.S. Atiyah, An Introduction to the Law of Contract, op. cit., n. 1, pp. 8–39 (addressing separately "Classical Contract Law", "The Decline of Freedom of Contract", and "Return to Classical Principles?"). Extensive literature addresses the "classical" conception and its foil, the progressive or contract-as-tort conception. For further brief introductions see Fried, op. cit., n. 2, pp. 1–6. For an extensive account of the classical and progressive theories and of their historical roots, see Atiyah, P.S.The Rise and Fall of Freedom of Contract (Oxford 1979).Google Scholar For a discussion of the rise of the classical conception as the expression of unbridled capitalism and of dominant class interests, see Horwitz, M., The Transformation of American Law: 1780–1860 (Oxford 1977), pp. 160–210.Google Scholar For a discussion of its decline and its replacement by tort-oriented theory, see Horwitz, M.The Transformation of American Law: 1870–1960 (Oxford 1992), pp. 33–51.Google Scholar

⁷ See, e.g., Anson, W., Principles of the English Law of Contract and of Agency in its Relation to Contract (Oxford 1879);Google ScholarPollock, F., Principles of Contract (London 1875).Google Scholar

⁸ See discussion in Cartwright, J.P.W. “An Evidentiary Theory of Promises” (1984)Google Scholar 93 MindliO.

⁹ For extensive treatments of the decline of the classical theory, see P.S. Atiyah, An Introduction to the Law of Contract, op. cil. n. 1, pp. 17–30; The Rise and Fall of Freedom of Contract, op. cit. n. 6, pp. 1–7, passim (maintaining that the voluntary assumption of obligations can account only for a small portion of traditional contract law and that its real foundations are benefit and reliance), Part III (“The Decline of Freedom of Contract”), esp. pp. 726–763 (“The Decline of Free Choice and Consent”).

¹⁰ “Progressive” encompasses a broad range of theories. For a “progressive” but more radical theory, associated with critical legal studies, see Mensch, B. “Freedom of Contract as Ideology” (1981)Google Scholar 33 Stan. L. Rev. 753.

¹¹ See P.S. Atiyah, The Rise and Fall of Freedom of Contract, op. cit. n. 6; G. Gilmore, op. cit. n. 2.

¹² See, e.g., P.S. Atiyah, Introduction to the Law of Contract, op. cil. n. 1, pp. 23–25; Atiyah, P.S., Essays on Contract (Oxford 1990) pp. 244–247;CrossRefGoogle ScholarAtiyah, P.S. “Book Review” (of Contract as Promise) (1981)Google Scholar 95 Harv. L. Rev. 509, 517 (maintaining that attempts to decide contract cases by expanding on actual intent bring “back the worst absurdities of classical fictitious intent”).

¹³ See discussion in P.S. Atiyah, Introduction to the Law of Contract, op. cit., at pp. 254–257; A. Corbin, Corbin on Contracts (St. Paul 1960) § 1331 pp. 355–361 (maintaining that judges who purport to formulate implied terms that parties “would have made” had they known the later facts are actually imposing a term based on the requirements of justice: “Justice is more likely to be done if the court is conscious that it is filling a gap that the parties have left and uses language in its opinion that is not language of interpretation only;” see citations therein). For an early foreshadowing of this position, see W. Page, “The Development of the Doctrine of Impossibility of Performance” (1920) 18 Mich. L. Rev. 589, 605–609 (rejecting the fiction of implied condition as causing “confusion of thought”).

¹⁴ For a typical statement of this now well-worn thesis, see, e.g., G. Gilmore, op. cit. n. 2, passim, esp. p. 87 (“‘contract’ is being reabsorbed into the mainstream of ‘tort’”).

¹⁵ See Fried, C., Contract as Promise. (Harvard 1981)Google Scholar. The related literature is substantial. For amore condensed defence of contract law as distinct from tort and centred on the enforcement of voluntary undertakings, see Raz, J., “Promises in Morality and Law” (1982)Google Scholar 95 Harv. L. Rev. 916. A leading example of a consistently neo-classical treatise is G. Treitel, The Law of Contract, op. cit. n. 1.

¹⁶ See, e.g., Treitel, op. cit. n. 1, pp. 2, 149–160 (on the limitations of objective interpretation of intent); Fried, op. cit. n. 15, pp. 60–62, maintaining that once a case cannot be decided by subjective intent it must be decided by “non-contractual principles.” Fried does, however, concede the existence of a weaker sense of intention to which courts can give expression in unforeseen situations: ibid., at pp. 87–88. His statements about the limits of the effect of intent and the promissory principle, however, indicate that he does not extend the reach of the parties' voluntary assumption of obligations as far as this essay does.

¹⁷ On the limitations of the idea of implied terms as applied to frustration, see Treitel, op. cit. n. 15, pp. 818–819. See also Farnsworth on Contracts, op. cit. n. 1, §9.5 pp. 533–542; Fried, op. cit. n. 15, pp. 60–62.

¹⁸ Fried, op. cit. n. 15, pp. 57–73 (arguing that cases of mistake, frustration and impracticability fall into contractual “gaps”, which cannot be filled by contract principles).

¹⁹ Some variation of these classifications can be found in any leading textbook. Professor Treitel, for example, lists five “juristic bas[e]s” of frustration cases as “implied term”, “just solution”, “foundation of the contract” (as Treitel points out, this quickly merges into implied intent or construction), “construction”, and “failure of consideration” (which seems similar to “construction”). Treitel, op. cit. n. 1, pp. 818–821.

²⁰ See, e.g., Treitel, op. cit. n. 1, pp. 818–821; Lord Wilberforce in National Carriers v. Panalpina (Northern) Ltd. [1981] A.C. 675, 693 (the “[vjarious theories … shade into one another”); Lord Simon of Glaisdale, ibid. p. 702 (“a number of theories have been advanced to clothe the doctrine of frustration in juristic respectability”). Lord Hailsham also reviews the leading theories in National Carriers Ltd. [1981] A.C. 675, 687–88.

²¹ Krellv. Henry [1903]2 K.B. 740, 748 (discussing impossibility in terms of an “implied condition” in a contract); Taylor v. Caldwell (1863) 122 E.R. 309, 312 (the contract to provide a music hall contained an “implied condition” that the defendant would be excused if the hall perished). See also Tamplin, F.A. Steamship Co. Ltd. v. Anglo-Mexican Petroleum Products Co. Ltd. [1916]Google Scholar 2 A.C. 397, 403 (court should infer existence of a term if both parties assumed a fact when bargaining).

²² Cases from the classical era are frequently ambiguous as between subjective and objective intent, although they generally moved from the former to the latter; which one a court uses is not important to this essay.

²³ A typical, and much quoted, criticism of implied intent can be found in Davis Contractors Ltd. v. Fareham Urban District Council [1956] A.C. 696, 728 where Lord Radcliffe said that invocation of the objective version of the theory of the implied term amounts to “no more than the anthropomorphic conception of justice”. See also Lord Denning in Ocean Tramp Tankers Corp. v. VIO Sorfracht (The Eugenia) [1964] 2 Q.B. 226, 238 (“But the theory of an implied term has now been discarded by everyone, or nearly everyone, for the simple reason that it does not represent the truth”).

²⁴ Hirji Mulji v. Cheong Yue S.S. Co. [1926] A.C. 497, 510.

²⁵ [1981] A.C. 675, 696.

²⁶ (1951) 84 C.L.R. 377, 404–408.

²⁷ “ Tamplin Steamship, F.A. Co. Lids. Anglo-Mexican Products Co. Ltd. [1916]Google Scholar 2 A.C. 397, 404 (also quoted by Lord Hailsham in National Carriers Ltd. v. Panalpina (Northern) Ltd. [1981] A.C. 675, 688).

²⁸ Treitel, G., The Law of Contract, 8th ed, (London 1991), p. 821.Google Scholar See also McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 377, above, p. 408, where, after stating that the question is one of construction, the court added that “questions of intention or ‘presumed intention' arise”.

²⁹ See, e.g., National Carriers Ltd. v. Panalpina (Northern) Ltd., above, in which Lord Hailsham, at p. 688, and Lord Roskill, at p. 717, based the frustration doctrine on “construction”; Lord Wilberforce, at p. 696, and Lord Russell, at p. 709, based it on “justice”; and Lord Simon, at p. 702, found it compatible with most “theories [that] have been advanced to clothe the doctrine of frustration in juristic respectability”.

³⁰ See, e.g., National Carriers Ltd. v. Panalpina (Northern) Ltd., above, at p. 702 (Lord Simon of Glaisdale).

³¹ Lauritzen, J. AS v. Wijsmuller BV (The “Super Servant Two”) [1990]Google Scholar 1 Lloyd's L.R. 1, 8 (Bingham L.J.) (referring to the contract's “true construction,” then stating that the “object of the doctrine [of frustration] was to give effect to the demands of justice”).

³² For discussions of how a case that is not entirely determined by a rule may nonetheless be partially determined by legal sources see MacCormick, N., Legal Reasoning and Legal Theory (Oxford 1979), pp. 100–195;Google ScholarRaz, J., The Authority of Law: Essays on Law and Morality (Oxford 1979), p. 70CrossRefGoogle Scholar (“a legal gap exists if some legal questions have no complete answer”) (emphasis added).

³³ Raz, J., “Promises in Morality and Law” (1982) 95Google Scholar Harv. L. Rev. 916, 932.

³⁴ A typical use of “gap” in the contract setting is Atiyah's. See Atiyah, P.S., “Book Review” (of Contract as Promise) (1981) 95Google Scholar Harv. L. Rev. 509, 513 (maintaining that a gap exists in contract law whenever a dispute arises to which the two parties have not actually directed their wills).

³⁵ Farnsworth and Fried fail to make this distinction, referring to only one kind of contractual gap. E.A. Farnsworth, Farnsworth on Contracts, op. cit. n. 1, §9.5 pp. 706–707; Farnsworth, E.A., “Disputes Over Omissions in Contracts” (1968) 68 Colum. L. Rev. 860, 862–868;Google ScholarFried, C., Contract as Promise (Harvard 1981), op. cit. n. 15, pp. 57–73.Google Scholar See also Trebilcock, M., The Limits of Freedom of Contract (Harvard 1993), p. 130Google Scholar (also failing to distinguish between two types of reason to look beyond the words of a contract); Restatement (Second), ch. 11 Introductory Note, pp. 310–311 (characterising the court's function as filling a “gap”).

³⁶ See U.C.C. § 2–305 (1987) (“open price term”).

³⁷ See Fried, op. cit. n. 15, at p. 60.

³⁸ See T. Aquinas, Summa Theologica I—11, q. 94, a. 4, ad 6.

³⁹ This use of “practical point” draws on John Finnis's use of the concept in Natural Law and Natural Rights (Oxford 1980), pp. 6–9.Google Scholar

⁴⁰ See Ronald Dworkin…s discussion of the “real” rule, statute, or poem that lies behind a text. Dworkin, R., Laws… Empire (Harvard 1986), pp. 16–17.Google Scholar This essay similarly seeks a point behind a contract, but in a manner that is much more constrained than Dworkin…s. First, where Dworkin…sidentification of the “real rule” is normatively saturated, ibid. pp. 176–275, this essay…s method is evaluative but not necessarily normative. Second, where Dworkin…s process permits justification by analogy to virtually any value found in a legal system, ibid., this essay…s process binds courts to a fairly low level of abstraction based on the content of the contract and the cases the contract must continue to cover

⁴¹ Courts may apply a reasonable person standard to determine how to decide the case in light of the point of the parties' agreement, but that still amounts to extending the reach of the party's greement rather than imposing an external solution. (Anson's Law of Contract disagrees, maintaining that the use here of a reasonableness standard only serves as a mask for the court's creating an exception that justice demands: Guest, A.G. (ed.), Anson's Law of Contract, 25th ed., (Oxford 1979), p. 507.)Google Scholar But just as application of an objective standard for intent in contract law will correspond in most case to the parties' actual subjective intent (contra, progressive scholars cited above) the use here of reasonableness assumptions should generally approximate the manner in which the parties would have resolved the issue in light of the practical point of the agreement. Disagreement on this point lies near the heart of the conflict between classical or neo-classical scholars and contract-as-tort scholars.

⁴² (1863) 3 B. & S. 826.

⁴³ [1903] 2 K B. 740.

⁴⁴ [1989] 1 W.L.R. 255.

⁴⁵ (1903) 19 T.L.R. 434.

⁴⁶ 66 Mich. 568, 33 N.W. 919 (1887).

⁴⁷ This is far from an original comparison. See e.g., Summers, R.S.Statutes and Contracts as Founts of Formal Reasoning, in Cane, P. and Stapleton, J. (eds.), Essays for Patrick Aliyah (Oxford 1991),Google Scholar ch. 4.

Professor Schauer, author of Playing by the Rules (Oxford 1991)Google Scholar, might at some point reject the rule/contract parallel. He states (at p. 18) that, because the idea of generality is essential to the concept of a rule, “[]jnless we mean to describe for multiple instances or prescribe for multiple actions it is simply mistaken to use the word 'rule'”. A contract is like a rule for the purposes of this essay, however, in a useful way. It is general in the sense that it is expected to dictate a reason for a particular outcome in a variety of possible situations. Also like a rule, a contract suffers the weaknesses and vulnerabilities of an attempt to control in the present a decision to be made by another person in the future. See ibid., ch. 7 (“The Reasons for Rules”). See also discussion in Atiyah, P. and Summers, R.Form and Substance in Anglo-American Law (Oxford 1991), p. 71Google Scholar (a rule is “a norm which applies to a class of cases”); W. Twining and Meiers, D.How To Do Things With Rules: A Primer of Interpretation 3rd ed., (London 1991), pp. 9–30Google Scholar (reviewing the functions of Rules).

⁴⁸ Schauer, op. cit. n. 47, p. 53. For discussion of these features of rules in terms of the reason behind a rule and how it can diverge from the language used in stating the rule, see W. Twining and D. Meiers, op. cit. n. 47, pp. 40–44, 211–216.

⁴⁹ See Aristotle, Nichomachean Ethics (Penguin 1953)Google Scholar, V.x. 1137b (“So when the law states a general rule, and a case arises under this that is exceptional, then it is right, where the legislator owing to the generality of his language has erred in not covering that case, to correct the omission by a ruling such as the legislator himself … would have enacted if he had been aware of the circumstances.”).

⁵⁰ Schauer, op. cit. n. 47, p. 117.

⁵¹ Ibid.

⁵² Ibid.

⁵³ 53 See Raz, J.Practical Reason and Norms (Princeton 1990), pp. 15–84, 178–199.Google Scholar

⁵⁴ “Immutable” rules and principles cannot be altered by agreement. For an overview of the literature addressing the differences between the two kinds of rules, see Ian Ayres and Gertner, R. “Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules” (1989) 99 Yale L.J. 87, 87–91.Google Scholar

⁵⁵ In this way contract-based reasons act as what Professor Raz calls “second-order” reasons that by their superior status defeat “first-order” reasons. For an explanation of second-order reasons and their relationship to other types of reasons, see Raz, Practical Reason and Norms, op. cit. n. 53, pp. 15–84.

⁵⁶ See Raz, Practical Reason and Norms, op. cit. n. 53, pp. 39–45. In rule-making one of the benefits of exclusionary reasons is efficiency: the conserving of decisional resources by saving the decisionmaker the need to reconsider all factors that might be relevant to reaching a decision. Cf. Schauer, op. cit. n. 47, § 7.3 (“The Argument from Efficiency”). In the contract context efficiency is one reason for this exclusionary function, but the primary purpose is power allocation: the contracting parties intend to determine ex ante which reasons a court can consider in applying the contract. Cf. Schauer, op. cit. n. 47, § 7.6 (“Rules and the Allocation of Power”).

⁵⁷ [1932] A.C. 161, 226–227. Lord Atkin then, however, collapsed them into one inquiry.

⁵⁸ The Super Servant Two [1990] 1 Lloyd's L.R. 1, 8.

⁵⁹ Ibid.

⁶⁰ Associated Japanese Bank turned on the first step and discussion of the second and third was obiter: [1989] 1 W.L.R. 269–270.

⁶¹ At p. 268 (“Logically, before one can turn to the rules as to mistake … one must first determine whether the contract itself.… provides who bears the risk of the relevant mistake”).

⁶² At p. 268 (“Only if the contract is silent on the [risk-allocation] point, is there scope for invoking mistake”).

⁶³ At pp. 267–268 (referring to a limited common-law doctrine of mistake “supplemented by the more flexible doctrine of mistake in equity”).

⁶⁴ [1989] 1 W.L.R. at p. 268 (explaining that “if the contract is held to be valid [after considering the common-law doctrine of mistake], a plea of mistake in equity may still have to be considered”)(emphasis added).

⁶⁵ [1950] 1 K.B. 671,692.

⁶⁶ See G. Treitel, The Law of Contract, op. cit. n. 1, pp. 284–285. (“no clear answer can be given to the question just when a contract which is valid at common law will be rescinded [for mistake] in equity”).

⁶⁷ [1950] 1 K..B. 671,692.

⁶⁸ See discussion of Solle v. Butcher [1950] 1 K.B. at p. 692.

⁶⁹ See, e.g., Smith, J.D. “Contracts—Mistake, Frustration and Implied Terms” (1994)Google Scholar 110 L.Q.R. 400 (arguing that there is no independent doctrine of mistake because all decisions considered mistake cases should be addressed as turning on contract formation (offer and acceptance) or on implied conditions precedent); Atiyah, P.S. “Judicial Techniques and the Law of Contract” in Essays on Contract (Oxford 1990), pp. 250–251CrossRefGoogle Scholar (addressing “mistake” and “implication of condition precedent” as interchangeable “techniques” of decision-making). See also Fleming, J.G. “Common Mistake” (1952)Google Scholar 15 Mod. L.R. 229, 232 (“The way is becoming clearer toward explanation of the relevant principles in terms of construction and offer and acceptance rather than within the framework of an independent and spurious category of mistake”); Slade, C.J. “The Myth of Mistake in the English Law of Contract” (1954)Google Scholar 70 L.Q.R. 385, 385 (“Mistake as such may be a ground for affording a party some relief in equity, but in itself it is irrelevant at law. A contract is void at law only if some term can be implied in both offer and acceptance which prevents the contract from coming into operation, or if offer and acceptance on their true interpretation are found to be divergent”).

⁷⁰ Typical characterisations include “such a change in the significance of the obligation that the thing undertaken would … be a different thing from that contracted for”: Amalgamated Investment … Property Co. v. John Walker … Sons Ltd. [1977] 1 W.L.R. 164, 173 (quoting Denny, Mott … Dickson Ltd. v. James B. Fraser … Co. Ltd. [1944] AC. 265, 274–275, 279). See also The Super Servant Two [;1990] Lloyd' L.R., p. 8 (“significant change in circumstances”) (citing Hirji Muljiv. Cheong Yue S.S. Co. Ltd. [1926] A.C. 497, 510); National Carriers v. Panaipina (Northern) Ltd. [1981] AC. 675, 700 (“significantly change[d] in nature”); Associated Japanese Bank v. Credit du Nord [1989] 1 W.L.R. 255, 265 (quoting the “radical change in obligation” test). Bell v. Lever Bros, even raised the Platonic question whether the quality of the thing contracted for was “essentially different” from what the parties believed it to be: [1932] A.C. 161, p. 218 (H.L.).

⁷¹ The method discussed here parallels Professor Raz's discussion of the common-law technique of distinguishing in Raz, J.The Authority of Law: Essays on Law and Morality (Oxford 1990), pp. 183–189.Google Scholar

⁷² At times Charles Fried appears to soften the apparent dichotomy, discussed above, between what this essay calls internal and external reasons: “Since actual intent is (by hypothesis) missing, a court respects the autonomy of the parties so far as possible by construing an allocation of burdens and benefits that reasonable persons would have made in this kind of arrangement. (It treats the contract as a kind of charter or constitution for the parties' relation)”: C. Fried, op. cit. n. 15, p. 73. Fried then reaffirms the dichotomy, however, by stating that this necessarily requires reference to external sources. (“This is … an inquiry with unavoidably normative elements.”): Ibid.

⁷³ On “selection of central case and focal meaning”, see Finnis, J.Natural Law and Natural Rights (Oxford 1980), pp. 9–11.Google Scholar See also Joseph Raz Practical Reason and Norms, op. cit. n. 53, p.; Hart, H.L.A. “Definition and Theory in Jurisprudence” (1954)Google Scholar 70 L.Q.R. 37, 46.

⁷⁴ Schauer, op. cit. n. 47, § 5.4 (“Two Types of Justification”).

⁷⁵ This review for egregious cases taxes a court's time less than would a complete fairness review because review of a case for extreme characteristics demands significantly fewer decisional resources than does reconsideration of all relevant factors in every case. Schauer seems to agree. See, e.g., Schauer, op. cit. n. 47, pp. 89–91, 230 (on taking a “perfunctory glimpse” at legal outcome, to see if it is an “extreme or dramatic” case and therefore an “obvious” case for override of that outcome).

⁷⁶ Aleyn 26.

⁷⁷ [1932] A.C. 161 (H.L.).

⁷⁸ See, e.g., The Super Servant Two [1990] 1 Lloyd's L.R. 1, holding that, under this contract, events arising due to negligence or unreasonable conduct of defendants could not be the basis for a defence of frustration.

⁷⁹ See, e.g., G. Treitel, op. cit. n. 1, p. 275.

⁸⁰ See, e.g., the extensive discussion in Atiyah, P. and Summers, R.Form and Substance in Anglo-American Law (Oxford 1991), passim, esp. pp. 88–93, 418–419.Google Scholar

⁸¹ A recent exception, reflecting both neo-classical tendencies and a belief in the treatise, is Farnsworth. See Barnett, R. “Contract Scholarship and the Re-emergence of Legal Philosophy” (1984)Google Scholar 97 Harv. L. Rev. 1223 (reviewing Farnsworth's treatise). For a general discussion of the history and current state of the treatise, and of its relationship to doctrine, see Simpson, A.W.B. “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981)Google Scholar 48 U. Chicago L. Rev. 632. The treatise tradition remains strong in England, where there is a relative abundance of excellent contract law treatises. What is more, these treatises tend toward a neo-classical, or doctrinal, view. In the United States, by contrast, Farnsworth probably is the first major treatise since Corbin and, except for the first Restatement, the first neo-classical or classical work since Williston.

²⁸ See, e.g., Atiyah, P.S. “Tort Law and the Alternatives: Some Anglo-American Comparisons” (1987)Google Scholar Duke L.J. 1002, 1004–1016 (discussing the relative litigiousness of the United Kingdom and the United States).

⁸³ For this use of “stickiness” or what Sehauer generally calls “ruleness”, see Schauer, op. cit. n. 47, p. 82.

⁸⁴ The court believed it faced such a case in Aluminum Co. of America v. Essex Grp., 499 F. Supp. 53, 89 (W.D. Pa. 1980): “If the law refused an appropriate remedy when a prudently drafted longterm contract goes badly awry … [p]jrudent business people would avoid using this sensible business tool”.

⁸⁵ Cf. Schauer, op. cit. n. 47, p. 95 (“direct application of the substantive justification … would engender excess uncertainty”).

⁸⁶ This harsh view of “formalist” reasoning in the classical era is probably somewhat overdrawn. For recent general discussions of formalism, see, e.g., Schauer, F. “Formalism” (1988) 97 Yale L.J. 509, 510, 535–538;Google ScholarWeinrib, E. “Legal Formalism: on the Immanent Rationality of Law” (1988) 97 Yale L.J. 949Google Scholar. To avoid confusion, I must point out that this essay also attempts to identify certain “formal” features of legal reasoning, “formal” in the sense that they are derived from legally authoritative sources. It distinguishes them from content-oriented or “substantive” reasons, which are the moral, economic or political consequences of application. See, e.g., Atiyah and Summers, op. cit. n. 79, pp. 1–31 (drawing the distinction and proposing, in addition to the word “formalist”, a corresponding word “substantivist”). See discussion in Summers, R. “he Formal Character of Law” [1992] 51 C.L.J. 242Google Scholar. Professor Raz draws a similar distinction between “content-independent” reasoning based on formally authoritative sources and “contentdependent”, or substantive, reasoning. See, e.g., Raz, J. “Legal Rights” (1984) 4 O.J.L.S. 1, 5–15.Google Scholar

⁸⁷ Illustrating the era's high regard for deductive, formal reasoning is Henry Sidgwick's The Methods of Ethics (London 1874)Google Scholar, in which he criticised practitioners of more casuistic and practical ethical reasoning as “hopelessly loose” (as compared to mathematicians) in their definitions and axioms (from a letter included in the preface to the sixth edition, 1901). That is not to deny that some courts probably were aware that they were employing fictions in order to fit their opinions to this form of reasoning.

⁸⁸ Charles Fried effectively disarms this idea by explaining that even if one believes that a legal system as a whole cannot have gaps, no similar problem arises with contract law because it is only a part of the law and any gaps can be filled by other legal sources. C. Fried, op. cit. n. 15, pp. 67–69.

⁸⁹ This position is most prominently associated with American “legal realists”. For an overview of legal realism, see Purcell, S.A., J., The Crisis of Democratic Theory (Kentucky 1973), pp. 74–94;Google ScholarTwining, W., Karl Llewellyn and the Realist Movement (U. of Oklahoma 1973), pp. 3–83, 375–387.Google Scholar

⁹⁰ See, e.g., Atiyah, P.S., “Book Review” (of Contract as Promise) (1981)Google Scholar 95 Harv. L. Rev. 509, 509 (“increasing doubts are felt about the neutrality of the judicial process in the interpretation and enforcement of contracts, and hence there is greater belief that the enforcement of contracts depends ultimately on collectively imposed value choices”). For prominent statements by critical legal scholars of the progressive dismissal of legal reasoning, see Unger, R., The Critical Legal Studies Movement (Harvard 1983), pp. 8–11;Google Scholar M. Tushnet, “Following the Rules Laid Down: A Critique of Interpretation and Neutral Principles” (1983) 96 Harv. L. Rev. 781, 818–819

⁹¹ Hart, H.L.A.The Concept of Law (Oxford 1990), p. 135.Google Scholar

⁹² In fact, however, the idea of limiting application of a rule to the cases in which it is warranted is a familiar principle of legal interpretation. It is captured in the familiar cessante ratione. cessat ipsa lex, or “when the reason of or for a law ceases, so does the law itself.”A more formal reasoning style, however, relies less on this maxim in determining the scope of application of a rule and relies more on the literal language of the rule.

⁹³ See Fried, C., “The Artificial Reason of the Law or: What Lawyers Know” (1981) 60 Texas L.Rev. 35, 35–39, 57–58Google Scholar, and Contract as Promise, op. cit. n. 15. Cf. Raz, J.The Authority of Law: Essays on Law and Morality (Oxford 1979)CrossRefGoogle Scholar, ch. 10 (“Law and Value in Adjudication”)(1979); Raz, “Legal Rights,” op. cit. n. 86, pp. 5–15; and “Promises in Morality and Law”, op. cit. n. 15, (for another example of a scholar who to some degree sees legal reasoning as distinguishable from political reasoning, and contract law as comprising at least a core of power-conferring rules).