Mutuality of Obligation in Contract Law

No field of law study, certainly none in the first-year curriculum, is richer in leitmotif than is that of contracts. Much of the challenge to the beginning student lies in untangling these recurrent themes, such as bargain, reasonable expectations and reliance, to take but a few. In the following pages I shall attempt to unravel one such theme that is of contemporary significance in the development of contract law-that of mutuality of obligation. The principle of mutuality of obligation can be simply stated: If two parties are to be bound by an exchange of promises, neither one is bound until the other is bound. We are going to look at the erosion of this principle in modern contract law. But first, a little whimsy may provide some insight into the principle itself. Let your imagination carry you back over a century to Friday, June 12, 1874

Contracts Scholarship in the Age of Anthology

In the first part of this article, I trace the history of the Age. I observe that for nearly forty years, from 1881 to the time of World War I, there was a significant decline in contracts scholarship and conclude that the principal explanation for these lean years lies in the shift in scholars\u27 focus from an audience of practitioners to one of students that resulted from the introduction of the case method. In the second part of the article, I look at the way in which the anthologists wielded the considerable influence that each had when only a few contracts casebooks dominated the market. I consider also such matters as their heavy emphasis on English cases, their exclusion of such major topics as remedies, and their abstinence from the use of anything other than cases. I conclude that although these early anthologists were blatant in their attempts to simplify and to rationalize the state of contract law, their espousal of particular doctrines was more restrained and subtle. In the third and final part of the article, I examine the way in which these early anthologists espoused particular doctrines in two specific and related areas: reliance on an offer of a unilateral contract and reliance on a gratuitous promise. I conclude that though the anthologies reflected the anthologists\u27 views on these matters, the anthologies themselves had little impact on the development of doctrine

Contracts during the Half-Century between Restatements

In May of 1979, as the sobering seventies drew to a close, I had the privilege of presenting to the membership of the American Law Institute the final chapter of Restatement Second of Contracts. The three volumes of that Restatement have now been published. I shall not hazard a guess as to how it will fare over the next fifty years. I would like instead to use the time we have together to reflect on what has happened in the law of contracts over the course of the half century between the two contracts Restatements- roughly 1930 to 1980