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The Dignity of CommerceMarkets and the Moral Foundations of Contract Law$
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Nathan B. Oman

Print publication date: 2017

Print ISBN-13: 9780226415529

Published to Chicago Scholarship Online: September 2017

DOI: 10.7208/chicago/9780226415666.001.0001

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Pernicious Markets and the Limits of Contract Law

Pernicious Markets and the Limits of Contract Law

(p.160) Chapter Eight Pernicious Markets and the Limits of Contract Law
The Dignity of Commerce

Nathan B. Oman

University of Chicago Press

This book takes a largely celebratory stance towards commerce and markets. However, markets can also be pernicious. The greatest historical example of a commercial evil is the Atlantic slave trade, which was organized as a market enterprise dedicated the mass immiseration of millions of people. When markets are pernicious, the justification for contract law runs out. Refusing to enforce such contracts is not a matter of paternalism, but rather of recognizing that contract law is justified by well-functioning markets. When contracts do not support such markets, the justification for their enforcement fails. Markets can be pernicious by having harmful consequences, injecting commercial values into non-commercial settings, or by distributing goods whose value is tied up in the very fact that they are not distributed in the market. Such situations provide a justification for rules limiting the enforcement of otherwise valid contracts.

Keywords:   pernicious markets, public policy exceptions, unconscionability

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