Document Type

Article

Publication Date

11-2023

Abstract

Formalism in contract law has had many defenders and many critics. What lawmakers need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by providing general theory of the rules of contract interpretation and construction and identifying several ways those rules can be more or less formalist. The theory draws from legal philosophy, the philosophy of language, economic contracts scholarship, and caselaw.

The result is a distinction between two forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples from contract law include “as is”, the seal, and some contract boilerplate. Evidentiary formalism, in distinction, function by limiting 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, identifying when they are and are not likely to advance the goals of contract law.

After canvassing factors relevant to the choice between formalist and nonformalist rules, this article applies the theory to critically evaluate how courts determine whether a writing is integrated, an important but understudied component of the parol evidence rule.

Comments

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

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