Publication Date

5-2020

Document Type

Article

Abstract

This article examines the concept of “contract lore,” a term used to describe commonly repeated propositions about contract law that may not accurately reflect how courts actually decide cases. Prior scholarship has suggested that the persistence of such statements reflects aspirational thinking among contract scholars and practitioners, maintained through a form of cognitive dissonance. This article challenges that explanation and instead argues that many examples of contract lore are better understood as heuristic starting points used in legal analysis. Rather than functioning as definitive statements of law, these propositions provide an initial framework from which students, lawyers, and judges begin evaluating contract problems. Through examples including the intent of the parties, willful breach, and expectation damages, the article demonstrates that these principles often serve as simplified entry points to more nuanced doctrinal inquiries involving context, exceptions, and equitable doctrines. Viewing contract lore as heuristic starting points helps explain why such statements persist despite their limitations. At the same time, recognizing their role invites reflection on whether particular starting points remain useful or should be reconsidered as contract law evolves.

Publication Title

Tulane Law Review

Volume

94

Issue

5

Comments

This article was included in the symposium issue: Contract Lore Revisited: Sweet Little Lies, in association with the fourteenth annual International Conference on Contracts (KCON XIV) held at Tulane University Law School in March 2019.

Download

Share

COinS