Contract Formation in US & English Law
American contract law has a lot of parallels to English law with respect to rules of contract formation. Here is a quick comparison:
The two formulas are basically identical. The second element of ‘intent’ in the English formula is sometimes called out as a separate element in US law, but mostly its presumed from both MA + C.
- K (US) = MA (typically, O+A) + C
- K (Eng) = I + A (typically, O+A) + C
So What?
It’s important to point out these parallels because we are witnessing even more convergence in the rules of contract formation (& maybe contract law, more generally) than at any point before. Advances in digital and blockchain-based contracting show a trend towards greater harmonization and standardization.
In the coming years and decades, it is reasonable to expect more harmonization in contract law not only between common law traditions, but also between common law¹ and civil law traditions.
Legal harmonization is usually accompanied by contrary trends and fragmentation, but the focus here is on areas of convergence.
Harmonization NOT a New Trend
As we continue to see more convergence in contract formation rules, it is important to keep in mind that these are not new developments.
As Rudolf Schlesinger and his collaborators pointed out in 1968, there is already a great deal of conceptual commonality between how different legal systems treat contract formation.
The analysis in Schlesinger’s Common Core of Contract Formation has stood the test of time. It remains a great starting point. Comparative methodologies like this give us more rigorous ways of thinking about areas of convergence between common & civil law traditions.
Better methodologies are absolutely necessary as we think about harmonization in other areas of contract law, including the central question of contract enforcement.
Would you like to help develop those methodologies and shape the future of contract law and, by extension, the future of civilization? We need your help to assure that contract law reflects the needs and expectations of diverse stakeholders, not just those who usually profit from it.
¹ Similar parallels can be seen in other so-called “common law” traditions — such as Australia, New Zealand, India, and other former colonies of the British Empire that were built on common law foundations.
