A Relational Perspective on Contract Law's Default Rules, with an Emphasis on Remedies

Abstract

The goal of this paper is to discuss what considerations lawmakers should consider when formulating those doctrines of contract law that can be displaced by agreement between the parties. These doctrines are called default terms. I will use the law of contractual remedies for examples; most (though not all) remedial doctrines are capable of alteration by agreement and hence are default terms. And I will focus on American law. The lawmakers who formulate contract law’s default terms in America could be judges, who create and interpret the common law, the private drafters of model legislation intended for legislative enactment (such as the UCC), or elected legislators themselves.

Keywords: Contract Law, Default Rules, Remedies, Contractual Remedies, Business-to-Business, Relational Contracts