Davey and Kelly, ‘Romalpa and Contractual Innovation’

Abstract:
Socio-legal studies have given relatively little attention to the mechanisms by which change occurs to the boilerplate that constitute modern contracts. Contrary to the impression left by neo-classical contract theory (and its descendant, Chicago School law and economics), contracts are not routinely revised to provide an optimal solution. As recent empirical studies show, change is sporadic, even within high-value contracts drafted by expert practitioners. Improvements to contractual form only arise after some external shock, which reveals the weakness in the prior norm. In the first application of this principle within the United Kingdom, the article considers the reputed rapid change in ‘retention of title’ clauses in sales transactions in the mid-1970s, and identifies the factors, and personalities, that led to such rapid legal innovation and change.

James Davey and Cliona Kelly, Romalpa and Contractual Innovation. Journal of Law and Society, volume 42, issue 3, pages 358–386, September 2015.

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