Document Type
Article
Publication Date
12-2024
Abstract
Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This article addresses that need by providing general theory of contract exposition and differentiating between two salient forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is”, the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. The article provides a detailed analysis of each form of formalism, identifies when they are and are not likely to advance the goals of contract law, and discusses the optimal design of each type.
Publication Citation
Cardozo Law Review, Vol. 46, Issue 2, 2024, Pp. 369-431.
Scholarly Commons Citation
Klass, Gregory, "Two Forms of Formalism in Contract Law" (2024). Georgetown Law Faculty Publications and Other Works. 2554.
https://scholarship.law.georgetown.edu/facpub/2554
Comments
This article originally appeared in 46 Cardozo L. Rev. 369 (2024).
An earlier version of this paper is available here: "Contract Exposition and Formalism" (2017). Georgetown Law Faculty Publications and Other Works. 1948.
https://scholarship.law.georgetown.edu/facpub/1948