case extracts 1

case extracts 1 - the objective theory of contract...

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“the objective theory of contract formation and interpretation holds that the intention of the parties to a contract or alleged contract is to be ascertained from their words and conduct rather than their unexpressed intentions.” 1 Subjective approaches did, however, transform the availability of relief for mistake, duress, and other grounds of avoidance. Objective approaches to words spoken or written by only one party are based on the reasonable expectations of the promisor, or the promisee. The latter perspective, focusing on the expectation of the promisor, articulated by Dr. Paley, had quite a following in the nineteenth century. 27 The perspective of the promisee was articulated by Adam Smith whose critique of the Will Theory, however, was not published until the twentieth century. He said, A [w]e may observe here that the obligation to perform a promise can not proceed from the will of the person to be obliged, as some authors imagine. For if that were the case a promise which one made without an intention to perform it would never be binding. @ 28 According to Smith, serious promises are binding A and the reason is plain: they produce the same degree of dependance and . . . disappointment. @ 29 In this article, I have argued against an intentionalistic theory of promises, such as the theory of Searle, and of others inspired by him. Such a theory leads to a one sided approach, and is unable to account for all the phenomena that count as promises. I have argued that in contract law both the promissor and the promissee play a role of importance, but also that the influence of their intentions is rather limited. I have then extrapolated my argument to extralegal promises. In the last section, I have offered some conjectures as to what may have contributed to the intentionalistic aspect of Searle's theory. My last conjecture was that the ambiguity of the word meaning may play a role. Let me end, in all modesty, by offering a suggestion that might help English philosophers in solving the problems of linguistics, and their translators in interpreting their solutions: the introduction of the word speaning for speaker's meaning ! 2 1 Perillo, The Origins of the Theory of Contract: Formation and interpretation, Fordham Law Review, Vol. 69, No.2 November 2000. 2
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6. In the Court of Appeal, the essential question was seen by their Honours as being whether Mr. Taylor knew or believed or was aware of facts that would lead any reasonable man to believe that Mrs. Johnson , at the time she executed the option and at the time she executed the contract, was under a mistake about what the relevant document actually said about the price. Their Honours, after detailed consideration of the facts, each reached the conclusion that Mr. Taylor believed that Mrs. Johnson
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This note was uploaded on 10/13/2008 for the course LW 242 taught by Professor Dean during the Two '08 term at Notre Dame AU.

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case extracts 1 - the objective theory of contract...

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