Abstract

Language and Formalities in Commercial Contracts: A Defense of Custom and Conduct

David V. Snyder
Washington College of Law, American University

SMU Law Review, Vol. 54, No. 2, Spring 2001

Abstract:
This article defends the decision to retain usage of trade, course of performance, and course of dealing in the revision of Article 1 of the Uniform Commercial Code. The article responds to recent neoformalist criticisms of the incorporation approach and offers a theoretical justification. Usage of trade and course of dealing should be understood as part of the parties' language, following Wittgenstein's understanding of language. Course of performance, which presents a weaker case in terms of language, should be understood as a legal formality, following Fuller's explanation of formalities. Thus understood, custom and conduct can be as important as written documents in determining the parties' assent. Ignoring custom and conduct risks subordinating the parties' assent as the central norm of contractual liability.

JEL Classifications: K12, K10

Accepted Paper Series

Date posted: August 29, 2001 ; Last revised: August 05, 2005

Suggested Citation

Snyder, David V., Language and Formalities in Commercial Contracts: A Defense of Custom and Conduct. SMU Law Review, Vol. 54, No. 2, Spring 2001. Available at SSRN: http://ssrn.com/abstract=278313

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Contact Information

David V. Snyder (Contact Author)

Washington College of Law, American University ( email )

4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States