You Don’t Have to Be Ludwig Wittgenstein’: How Llewellyn’s Concept of Agreement Should Change the Law of Open-Quantity Contracts
37 Seton Hall Law Review 67 (2006)
In this article, Professor Allen Blair examines the preeminent role of exclusivity in open-quantity contracts under the Uniform Commercial Code (“UCC”). Although the text of the UCC does not mandate that open-quantity contracts be exclusive, the vast majority of courts considering the issue have held that exclusivity is necessary to prevent such contracts from failing for lack of mutuality of obligation. The Article traces the historic development of open-quantity agreements, focusing on pre-Code cases recognizing the commercial utility of such agreements but struggling with how to accommodate them under a classical model of contract formation. It was in this historic context that courts forged the requirement of exclusivity. Despite the fact that the UCC was intended to supplant rigid notions of contract formation, thus expanding the range of legally enforceable commercial agreements, post-Code courts have remained con- strained by classic contract law and still require exclusivity. This Article argues that by demanding exclusivity in open-quantity agreements, the majority of courts have relied on an outmoded conception of contract formation, which unduly restricts commercial deal-making and ignores the relational benefits at the heart of the UCC and Karl Llewellyn’s concept of agreement.
Blair, Henry Allen, "You Don’t Have to Be Ludwig Wittgenstein’: How Llewellyn’s Concept of Agreement Should Change the Law of Open-Quantity Contracts" (2006). Faculty Scholarship. 407.