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A Historical Introduction to the Law of Obligations$
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David Ibbetson

Print publication date: 2001

Print ISBN-13: 9780198764113

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780198764113.001.0001

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13. The Decline of the Will Theory: Legal Regulation and Contractual Fairness

13. The Decline of the Will Theory: Legal Regulation and Contractual Fairness

Chapter:
(p.245) 13. The Decline of the Will Theory: Legal Regulation and Contractual Fairness
Source:
A Historical Introduction to the Law of Obligations
Author(s):

D. J. IBBETSON

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198764113.003.0014

This chapter discusses the decline of the Will Theory. Continental and transatlantic scholars took the lead the gradual erosion of confidence in the Will Theory and doctrines derived from it. As an intellectual structure the Will Theory was too brittle to bear the weight placed on it, it did not fit easily with commercial practice, and its fundamental idea of party autonomy clashed with widely held principles of social justice. Despite tentative attacks, the main doctrines associated with the Will Theory survived; but they were overlaid with new principles, most importantly those generated by considerations of fairness and justice, and in places the older ideas were reinterpreted in the light of the new.

Keywords:   Will Theory, fairness, justice

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