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The Search Interest in Contract

Joshua Fairfield

Washington and Lee University - School of Law


92 Iowa L. Rev. 1237 (2007)
Indiana Legal Studies Research Paper No. 63

Parties often do not negotiate for contract terms. Instead, parties search for the products, terms, and contractual counterparties they desire. The traditional negotiation centered view of contract continues to lead courts to try to construe the meaning of the parties where no meaning was negotiated, and to waste time determining the benefits of bargains that were never struck. Further, while courts have ample tools to validate specifically negotiated contract terms, courts lack the tools to respond to searched-for terms. Although the law and literature have long recognized that there is a disconnect between the legal fictions of negotiation and the reality of contracting practice, no theory has emerged to replace fictional negotiation. Therefore, this article develops a new search-oriented theory of contract, and shows that search theory can explain contracting behavior where the fictions of negotiation fail. The article then applies this theory to the common law of contract, the Uniform Commercial Code, and the growing world of internet searches and electronic contracting.

Number of Pages in PDF File: 52

Keywords: Contract, Transaction Costs, Search, Negotiate, E-bay, Google, Search Optimization, Search Engine, Law, Cyber Law

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Date posted: October 26, 2006 ; Last revised: June 20, 2013

Suggested Citation

Fairfield, Joshua, The Search Interest in Contract (2007). 92 Iowa L. Rev. 1237 (2007); Indiana Legal Studies Research Paper No. 63. Available at SSRN: http://ssrn.com/abstract=940451

Contact Information

Joshua Fairfield (Contact Author)
Washington and Lee University - School of Law ( email )
Lexington, VA 24450
United States
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