Contract : Freedom and Restraint by Richard A. Epstein

By Richard A. Epstein

First released in 2000. Routledge is an imprint of Taylor & Francis, an informa corporation.

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Example text

But such choice is surely the very opposite of what men value as freedom. Clearly, then, the element of consent on the part of the employee may be a minor one in the relation of employment - a relation much more aptly and realistically described by the old law as that between master and servant. Down to the end of the eighteenth century this relation was in fact regulated by the gov- 17 570 HARVARD LAW REVIEW ernment. Wages used to be regularly fixed by justices of the peace under the authority of parliamentary enactments, and even the beer that the master was to serve to the servant with his bread had its strength regulated by law.

For note that in enforcing contracts, the government does not merely allow two individuals to do what they have found pleasant in their eyes. Enforcement, in fact, puts the machinery of the law in the service of one party against the other. When that is worthwhile and how that should be done are important questions of public policy. Since no government is omniscient, some element of discretion in the conduct of affairs must be left to the individuals who make a contract. We cannot rely entirely on regulations made in advance by the legislature, or post factum by judges.

21 HARVARD LAW REVIEW 574 on a mere verbal agreement or hasty memorandum. But other transactions, like those of real estate, are more complicated and would become too risky if we were bound by every chance promise that escapes us. Negotiations would be checked by such fear. In such cases men do not want to be bound until the final stage, when some formality like the signing of papers gives one the feeling of security, of having taken proper precautions. The issue obviously depends upon such factors as the relative simplicity of a given transaction, the speed with which it must be concluded, and the availability of necessary information.

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