从意思理论到私人自治原则——评富勒的《约因与形式》

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【作者】肯尼迪.D

【内容提要】

Lon Fuller's "Consideration and Form" originated a scheme for the analysis of contract questions based on multiple formal and substantive considerations, with "the principle of private autonomy" first among equals. This Article places Fuller's scheme in the context of the critique of the nineteenth-century will theoy of contracts and the rise of sociological jurisprudence and legal realism. Fuller built on European legal theory and on civilian contract law solutions that seemed more flexible than those provided by the objective theory of contract formation and consideration doctrine. Fuller's scheme came closer to modern policy analysis than anything in the prior literature. It nonetheless achieved only a partial synthesis, denying any place to what the writers of the time called the "social" dimension of the field and underplaying conflict among the factors he identified. These traits may be explained y the fact that he was breaking new ground and by the centerright ideological agenda he was pursuing within private law theory.

【关键词】Private law, Contract theory; Conflicting considerations; Contractual liability; Principle of priva

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