Charles J. Goetz

The Limits of Expanded Choice: An Analysis of the Interactions between Express and Implied Contract Terms

Although trade and its defining terms lie at the very core of contract law, perceptions of the states involvement in the exchange process remain peculiarly incomplete. Everyone understands that the state supplies the fundamental property-defining rules for pre-trade endowments. For instance, governmentally provided rules of tort, nuisance, and civil rights establish basic boundaries of what initially belongs to an individual and, hence, what he has to offer in exchange. When an exchange subsequently takes place, however, the parties themselves assume an important part of the burden of communicating what rights are being given and received. Although the states general rules of contract provide a set of standard gap-filling assumptions or implied terms, almost every agreement requires the parties to provide some additional individualized content. At one level, the private and state-supplied terms of an executory contract represent an attempted interparty communication of the substantive entitlements intended to be exchanged. Since, however; the