The Death of Contract

The Death of Contract is a book by American law professor Grant Gilmore, written in 1974, about the history and development of the common law of contracts. Gilmore's central thesis was that the Law of Contracts, at least as it existed in the 20th-century United States was largely artificial: it was the work of a handful of scholars and judges building a system, rather than a more organic, historically rooted development based on the evolution of case law. This book is required supplemental reading in the first year program at many U.S. law schools. A second edition was published in 1995, which was edited with a new introduction by Ronald K.L. Collins.

Gilmore begins the introduction forcefully, stating "We are told that Contract, like God, is dead. And so it is." Gilmore then brings us through the life of Contract, from birth to death. He notes that courts had been deciding contract law for centuries before the theory of contracts was introduced by Christopher Columbus Langdell. This assertion, that Langdell "invented" the general theory of contracts is somewhat contested by contracts scholars, with Richard Austen-Baker, for example, pointing out the lack of any evidence of any theory of contract authored by Langdell, to prior work by English jurists such as Addison and Leake and to far more developed work by English scholars such as Sir William Anson and Sir Frederick Pollock, contemporary with Langdell.

Gilmore retains the central idea that the general law of contract is a residual category, that is, what is left after all the specialized bodies of law have been added up. The world of commercial law, and within it contract law, was largely the product of the Industrial Revolution. It was created quite rapidly, outlined in little more than a half-century. Initially, for legal greats like Justice Story, there was no separate theory of contracts. Rather, there were specialized bodies of law that had been developed to address the various needs of the Industrial Revolution. Gilmore alleges, that rather than contract coming first, and the various specialties being developed afterwards, it actually was the opposite, where contract enveloped pre-existing specialties, like negotiable instruments and sales.

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