This article argues that rapid societal changes require a theory of contract that is capable of evolving with them and urges adoption of a "dynamic" approach to contract disputes. It proposes that adoption of dynamic principles furthers the primary objectives of contract law and is best suited to address evolving social norms and needs. By setting as the primary objective ascertainment of the parties' intent rather than review of words on a page, a dynamic approach better captures the context and the spirit in which the contract was made. Part II briefly summarizes the most commonly cited objectives of contract law and discusses why a dynamic approach to contract law is preferable to strict adherence to any one theory. Part III examines why and how contract rules of interpretation may undermine the objectives of contract law discussed in Part II and discusses why a dynamic application of contract rules of interpretation best accommodates evolving business and societal needs and the traditional objectives of contract law. Part IV examines three cases and proposes how the analysis might differ using a dynamic approach. This Part concludes that the threshold question of whether to apply a particular interpretation rule should depend upon whether it is helpful in determining the intent of the parties or in promoting a policy or legislative objective. This Part also provides guidelines regarding how and when to apply contract interpretation rules using a dynamic approach.
Evolving Business and Social Norms and Interpretation Rules: The Need for a Dynamic Approach to Contract Disputes,
84 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol84/iss2/4