Restatement (Second) of Contracts

The Restatement (Second) of the Law of Contracts is one of the most well-recognized and frequently-cited legal treatisesAcceptable citation format under the Bluebook: "Restatement (Second) of Contracts § ___ (1981)." The Bluebook: A Uniform System of Citation § 12.8.5 (Columbia Law Review Ass'n et al. eds., 17th ed. 2000)] in all of Anglo-American jurisprudence. Every first year law student in every ABA-accredited law school in the United States is exposed to it, and it is probably the most-cited non-binding authority in all of U.S. common law in the areas of contracts and commercial transactions.cite book | last = Bauman | first = Richard | title = Ideology and Community in the First Wave of Critical Legal Studies | publisher = University of Toronto Press | location = Toronto | year = 2002 | isbn = 0802083412 ] It is a work without peer in terms of overall influence and recognition among the bar and bench, with the possible exception of the Restatement of Torts. The second edition was begun in 1962 and completed by the American Law Institute in 1979.cite book | last = Beale | first = Hugh | title = Contract Law: Casebooks for the Common Law of Europe | publisher = Hart Pub | location = Oxford | year = 2002 | isbn = 9781841132372 ]

For an explanation of the purpose of a restatement of law, see Restatement of the Law.

Use and commentary

Preeminent legal scholars and jurists have commented extensively on the Restatement, both in contrasting it with aspects of the first Restatement, and in evaluating its influence and effectiveness in reaching its stated objectives. It is in this context of "direct review" that one can find numerous arguments both favoring and criticizing some aspects of the Restatement as an independent source of legal scholarship. [Interpretation and Legal Effect in the Second "Restatement of Contracts" Robert Braucher Columbia Law Review, Vol. 81, No. 1 (Jan., 1981), pp. 13-18] [Jacobs, Legal Realism or Legal Fiction? Impracticability Under the Restatement (Second) of Contracts, 87 Com. L.J. 289 (1982). ] [Braucher, Offer and Acceptance in the Second Restatement, 74 Yale L.J. 302 (1964). ] [Kelly, The Codification of Contract Law in the Twentieth Century, 88 Dick. L. Rev. 289 (1984). ] [Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L. Rev. 23 (1985). ]

Although several sections of the Restatement contained new rules which sometimes contradicted existing law, courts citing these sections have predominantly adopted the Restatement's view, citing them as a court would cite statute or code. [Gregory E. Maggs, " [http://docs.law.gwu.edu/facweb/gmaggs/pubs/ipse.htm Ipse Dixit: The Restatement (Second) of Contracts and the Modern Development of Contract Law] ", 66 Geo. Wash. L. Rev. 508 (1998).]

Far more common, however, is the practice of citing the Restatement to clarify generally-accepted doctrine in every major area of contract and commercial law. It is in this context of "legal research" that one can find the Restatement used as direct substantiation and persuasive authority, to validate the arguments and interpretations of individual legal practitioners. Restitution in the Second "Restatement of Contracts"Joseph M. PerilloColumbia Law Review,Vol. 81, No. 1 (Jan., 1981), pp. 37-51] Contracts: Expanded Application of Promissory Estoppel in Restatement of Contracts Section 90: Hoffman v. Red Owl Stores, Inc. Michigan Law Review, Vol. 65, No. 2 (Dec., 1966), pp. 351-358]

Legacy

Although the Restatement of Contracts is still an influential academic work, certain aspects have been superseded in everyday legal practice by the Uniform Commercial Code, particularly in the law on the sale of goods.

ee also

* Corpus Juris Secundum

Notes and references

External links

[http://www.law.harvard.edu/library/services/research/guides/united_states/basics/restatements.php Legal reference guide to the Restatements from Harvard Law School]