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Contract as PromiseA Theory of Contractual Obligation$
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Charles Fried

Print publication date: 2015

Print ISBN-13: 9780190240158

Published to Oxford Scholarship Online: May 2015

DOI: 10.1093/acprof:oso/9780190240158.001.0001

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(p.57) Chapter 5 Gaps
Contract as Promise

Charles Fried

Oxford University Press

Contracts like promises do not cover all contingencies. How does the law respond when life outruns language and foresight? The chapter discusses ways in which a gap may arise in a contract, including the role of mistake, frustration, and impossibility. It also delves into the relationship of the doctrine of “letting the loss lies where it falls” and the draconian results that may entail, especially as compared with the fairer results of the concept of sharing losses. It then sets forth the principle that even if gaps occur in a contract, there are no gaps in the law: therefore residual principles of law must be used to fill any gaps.

Keywords:   contractual gaps, mistake, frustration, impossibility

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