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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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Bargain Promises and the Bargain Principle

Bargain Promises and the Bargain Principle

Chapter:
(p.31) Five Bargain Promises and the Bargain Principle
Source:
Foundational Principles of Contract Law
Author(s):

Melvin A. Eisenberg

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199731404.003.0005

Chapter 5 concerns bargains. A bargain is an exchange in which each party views what he gives as the price of what he gets. Bargain promises are the paradigm case of a promise that should be legally enforceable. The substantive reasons for enforcing bargain promises are extremely strong. To begin with, bargains between actors who act voluntarily and are capable and fully informed increase wealth by producing gains through trade, because normally each party to a bargain values what he gets more highly than what he gives. Bargain promises also present few problems of process. Such promises are typically self-regarding and therefore are likely to be deliberatively made and finely calculated. For all these reasons, under the bargain principle in contract law a bargain promise is enforceable according to its terms in the absence of a defense such as fraud, duress, incapacity or unconscionability.

Keywords:   bargains, bargain promises, bargain principle, gains through trade, self-regarding promises, deliberatively made promises

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