Holmes therefore regarded consideration as a matter of form, writing: “In a sense, everything is form that the law requires to make a promise binding beyond the mere expression of the will of the promisor. Consideration is both a form and a seal. 114 His argument that consideration was merely a kind of form supported his attack on the theory of the will of the contract,115 and Holmes contrasted “form” as a determination of enforceability with “consent” as an enforceable provision as a provision of legal enforceability.116 Stating that consideration was merely a type of form (albeit well-founded), He attempted to move the legal applicability away from the notion of consent. Holmes made this clear in an 1896 letter: he wrote that “the best test of truth is the power of thought to prevail in market competition. At least that is the theory of our constitution. Again, “If there is one principle of the Constitution that calls for attachment more urgent than any other, it is the principle of free thought – not freedom of thought for those who agree with us, but freedom for thought that we hate. Holmes` famous theory of 1897, according to which law is a prediction of what the courts will do, actually slowly changed the way law schools taught law until legal realism took over the curriculum in the mid-1920s. Legal realists have argued that judges decide cases for a variety of objective and subjective reasons, including precedents. If law schools wanted to train future lawyers to be effective, they would have to be confronted with minor topics that could influence judges: law and society, law and literature, etc. But the standard interpretation was a big mistake. It treats the law in a manner analogous to weather forecasts: a meteorologist predicts the weather tomorrow, just as a lawyer predicts a judge`s future decision. But Holmes said what a judge will decide in the future is irrelevant; A man (suich as well as an evil man) must plan his affairs on the basis of the current law. The current law is nothing more than the prediction itself.

It`s like quantum theory: what we see is not solid matter, but the probability of solid matter. The law that influences our behavior is itself a probability. As a result, the emphasis of legal realists on the judge is shifted; The focus should be on the lawyer. Holmes then relied on objective theory to finally decide that a defendant`s motive for misleading the plaintiff by another oral agreement on the contents of the letter was irrelevant: while Holmes applied the requirement to read the rule as a supplement to the objective theory, he refused to apply it when the defendant knew that the plaintiff had misunderstood its wording. and remained silent. The finding that such non-disclosure constituted fraud, regardless of corrupt motives or intentions. Holmes wrote about a particular plaintiff who could not read: During Holmes` twenty years on the Massachusetts Supreme Court from 1882 to 1902, he had ample opportunity to implement his general theory of contract law as set forth in the common law, including the objective theory of contracts and the theory of negotiation of consideration. And as will be seen below, in his statements, Holmes consistently emphasized his themes drawn from the treaty lectures in The Common Law, although it is also demonstrated that Gilmore`s assertion that Holmes` goal was that “no one should be held accountable to anyone for anything” has no support. At the same time, however, Holmes` analysis of Holmes` application of his theory of contract law reveals no devotion “to the assertion that, ideally, no one should be responsible for anything” and that “responsibility. was. be severely restricted.” 261 While Gilmore considered that the windfall consideration doctrine was “an instrument for narrowing the scope of contractual liability”262 – and that it did have that effect if only there was a non-negotiated trust – Holmes made promises to find consideration, refused to examine a party`s real motives in order to thwart consideration, and argued that consideration should be found in the agreements.

Commercial. And Holmes` veneer on the Hadley Rule had no obvious restrictive effect on a defendant`s liability for damages. Holmes was willing to establish that a defendant had assumed the risk of liability for consequential damages and also refused to apply a strict standard to prove the amount of consequential damages. But if the other party did not know or had no reason to believe that the fault of a third party provoked the consent of the party, the manifestation was effective according to the objective theory: “A contracting party does not care about the motives of the other party if it does not know them and is not responsible for their existence. That is what happened with fraud. If a man gives a narrative and knows facts sufficient by the average standard of the community to warn him that it is probably false, and it is false, he is guilty of fraud in legal theory, whether or not he believes his statement. (Holmes 1881:217-8) But it is further objected that the acceptance of the guarantee or, more precisely, the payment of the consideration by the plaintiffs was not communicated to the defendant. We believe, as I said, that the jury would have been free to establish that the guarantee was signed on the condition that the claimants would sign if it were signed.

If that was the case, it was not necessary to inform the respondent of the date on which the communication had been breached. He already had all the notifications he needed, and sending him notice of termination would have been only a formal act that is not required by custom or contractual theory. There is no universal common law doctrine, as understood in this Commonwealth, that acceptance of an offer must be communicated in order to conclude a valid simple contract, although this necessity may be inferred from language in [cases of registration]; Langd.Cas.Cont. § 2 et seq.161 An analysis of Holmes` opinion of the treaty in the Massachusetts Supreme Court shows that he adhered closely to his theory of contract law, which he had set out in the common law.260 The subjective intentions of the parties were generally irrelevant – what mattered was the manifest actions of the parties and how a reasonable person would interpret them. Objective theory has prevailed both in contract formation and in contract interpretation. The advantage-disadvantage test was rejected – the decisive factor was whether there was a company. The crucial question was whether what the parties were giving was the conventional ground or the inducement to conclude the agreement. However, consideration of a party`s actual reason for entering into the agreement was irrelevant; The consideration was a formality. And despite a case of conflicting dictates, Holmes followed suit and applied his veneer of “risk-taking” to Hadley`s predictability rule.