Contract Law and Fundamental Legal Conceptions: An Application of Hohfeldian Terminology to Contract Doctrine

Abstract

In 1913 a manuscript arrived at the Yale Law Journal. It was titled Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, and its author was an obscure Stanford law professor named Wesley Newcomb Hohfeld. In it he argued that courts used the term right in four different senses, and that a court's failure to recognize this could lead to deductive reasoning errors when deciding cases. The journal's editors brought the piece to Arthur L. Corbin, the journal's faculty advisor, for his thoughts. He immediately advised them to publish it.

The article's stated goal was modest-to aid law students "in the understanding and in the solution of practical, every-day problems of the law." It also had the air of nineteenth century formalism and conceptualism, ideas soon to be out of fashion. But underneath its modest pedagogical purpose and formalistic and conceptual aura, the piece had subversive power. Intentionally or not, this obscure professor's article was a devastating critique on formalist legal reasoning — the very type of reasoning it seemed to represent.

By the Second World War his work had fallen from view. The legal academy's neglect of the article's stated purpose is unfortunate, for today this is where it has the most to offer. This Article maintains that Hohfeld's ideas should be given renewed attention for their stated purpose-as an aid to legal reasoning, and that Hohfeldian analysis should not simply serve as a footnote in the story of the fall of legal formalism. Hohfeld's role in overturning legal formalism ran its course long ago. His system's current practical use lies in its stated purpose-to avoid errors in deductive reasoning. By reemphasizing Hohfeldian analysis, law students, then lawyers, and then ultimately judges, will be better trained to think like lawyers, and to recognize and to avoid the errors in deductive reasoning that led Hohfeld to develop his system. In an effort to continue the move toward better deductive reasoning skills started by Professor Nyquist, this Article analyzes the most important contract-law doctrines through Hohfeldian terminology. This area of law has been chosen not because its subject matter is necessarily better suited for Hohfeldian analysis than any other, but because it is this author's area of expertise.

Keywords: Legal Formalism, Deductive Reasoning, Contract Law, Legal Pedagogy

JEL Classification: K12, K19