Contract law and distributive justice revisited

Abstract

This article is a response to a series of articles on contract law and distributive justice. In the first article, published in the Yale Law Journal, Professor A. T. Kronman put forward the thesis that the law of contract is necessarily concerned with distributive justice – that is, with the ‘fair division of wealth among the members of society’. In the second article, published in the Oxford Journal of Legal Studies, W. N. R. Lucy rejected that thesis and argued that limits on contracting are based on freedom rather than distributive justice. In this article I argue that contract law is and should be concerned both with freedom and with the substantive fairness of the distribution effected between the parties.