Gilmore's "The Death Of Contract" And Its Legal Significance

In 1970,Gilmore put forward the topic of “death of contract” in a lecture at Ohio University,some people think that the contract is dead,others think that it is nirvana of death and rebirth,then the discussion of contract's death has been raised all over the world.In fact,“the death of contract” is the product of times.In the United States,because of the Vietnam War,the civil rights movement and other factors,people gradually have a crisis of trust in the government.At the same time,in the field of legal thought,realism gradually prevails.Under the internal and external pressure,the classical contract theory seems to have lost its living space.In fact,Gilmore's “death of contract” thesis refers to the decline of classical contract theory and the crisis of contract law being integrated by tort law,not the death of contract phenomenon.Classical contract theory originated from the abstraction of case law,developed on the basis of general rules and framework laid down by Randall.Holmes elaborated trade consideration theory in detail,and Williston carried it forward systematically.This theory gradually formed the feaures of absolute responsibility and absolute contract freedom.In the later period of the development of classical contract theory,its legal philosophy foundation was impacted by the movement of American legal realism.At the same time,the monopoly phenomenon of commercial society and the refinement of social labor division,broke the assumption of the completely rational human subject of classical contract theory.With defects of transaction contract theory gradually exposed,all these made Gilmore issue the death of classical contract theory.Because of the following three changes,Gilmore came to the conclusion of contract death: first,the theory of transaction consideration tends to decline,the rise of promissory estoppel rules reduces the application space of the theory of transaction consideration;secondly,the freedom of contract is limited,the content of compulsory contract increased,principles and social standards are brought into the interpretation of contract in legislation and justice;thirdly,tort law expanded lead to the scope of contract adjustment object is narrowed,the responsibility is expanded,and the individual responsibility is gradually dispersed to the society.However,just as “A thousand Hamlets in the eyes of a thousand readers”,different scholars have different answers to “ the death of contract”.Mc Neil,a contract jurist,thinks that "contract is far from dead",because the society as the source of contract will not be destroyed,and the death of contract theory can be reconstructed,so he proposes that the theory of relationship contract endows contract with vitality.According to Japanese scholar Keizo Noda,the death of contract is "regeneration".He questioned whether the classical contract has never been implemented in social practice,and took the theory of relationship contract as the new justification of contract and the new theoretical basis for the development of Japanese civil law.Although the thesis of “the death of contract” has shortcomings such as over relying on the theory of consideration and overstating the scope of the death of contract,what we should see more is the innovation of the theory of contract,the vigilance of the expansion of tort law,the proper use of literature and legal rhetoric,and the implied trend of legal socialization.It is these bright spots that cause us to think about the conflict between the freedom of contract and the justice of contract,to face up to the expansion of tort law in China's civil code(draft)and various problems in the process of legal socialization.