Binding Promises: The Late 20th Century Reformation of Contract Law.

In this highly readable book, Professor Slawson, who is Torrey H. Webb Professor of Law at the University of Southern California, lays out a coherent thesis explaining the courts, change from strictly classical to more consumer-friendly contract interpretation. He first outlines the social and economic developments decreasing consumers, bargaining powers and making people more dependent on products made by others, which, in turn, made unrealistic the premises of classical contract. Those premises are that contracts can serve people's private interests while serving the public interest well enough to enable governments to limit their functions to law enforcement and national defense.

In separate chapters, Professor Slawson then discusses each of four clusters of reforms. He dubs them reasonable expectations, relational torts, and bad faith breach and remedies reform.

Reasonable expectations involve restrictions on contracting power so the maker can reasonably expect the other party to understand the contract's terms. Examples include the courts, development of the covenant of good faith and fair dealing and unconscionability, as well as the courts, increasingly consumer-oriented interpretation of insurance policies.

Relational torts involve new laws and court decisions creating tort duties in contractual relationships that impose public responsibilities on producers and limit their freedom of contract. Examples include duties insurers owe insureds, residential real estate developers owe new home buyers, employers owe discharged employees, and sellers owe buyers of goods. Another example is the imposition of fiduciary duties between franchisor and franchisee.

Bad faith breach includes a variety of loosely defined wrongs committed in contractual situations. These wrongs have in common that the breacher knows of no defense but still tries to avoid liability. Examples include tortious interference with contract and with business expectancy, and wrongful denial of insurance coverage. Remedies reform grows out of bad faith breach and includes expansion of the types of cases in which the court imposes punitive damages and awards damages for emotional distress for bad faith breach.

Even though Binding Promises is of particular interest to commercial litigators, since it includes extended discussion of such topics as Uniform Commercial Code warranties and the imposition of fiduciary duties in various commercial relationships, there is plenty in this book for personal injury lawyers. For example, Slawson includes thought-provoking analyses of the theory of punitive damages (which he would limit) and the American rule of allowing the successful party to recover litigation costs (which he would abolish in most contract cases).

To support his points, Slawson presents illuminating hypotheticals, discusses about 50 cases in some detail, and supplements these discussions with 25 pages of footnotes that inform well beyond mere citation of additional cases.

Binding Promises, in presenting a cohesive synthesis of a diverse body of law to support a unifying thesis, is well worth reading. As we approach the 21st century, Slawson ably explicates the theoretical underpinnings for reformation of contract law in the late 20th century.

Stewart L Edelstein practices with Cohen and Wolf in Bridgeport, Connecticut.