Rebecca Stone’s ‘Putting Freedom of Contracts in Its Place’, forthcoming in the Journal of Legal Analysis, begins with the puzzle of penalty clauses. If two parties agree to an award for breach of damages in excess of expectation, why should a court not give effect to their bargain? Most contracts theorist, whether coming from a welfarist or a rights-based perspective, can’t think of a reason, but Professor Stone can. It comes through her democratic, rights-based conception of contracts. Parties’ freedom to structure their transactions is cabined by the requirement that such transactions realize substantive justice … (more)
[Jeremy Telman, ContractsProf Blog, 11 October 2024]
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