Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process

47 Pages Posted: 19 May 2008

Abstract

The goal of this Article is to demonstrate that contract law's prohibition of racial discrimination in the formation, performance, enforcement, or termination of a contract would be perfectly consistent with its natural, orderly evolution in this century. Part I briefly examines the strong consensus against racial discrimination that has emerged in this society and the federal statutes that reflect this consensus, closing with an examination of the harms caused by racial discrimination in the contracting process.

Part II examines the common law of contracts as an institution and studies its evolution. In the process, it demonstrates that in a variety of contexts modern contract law imposes community standards of decency and fairness on contracting parties. Part III explores the mechanics by which the common law of contracts can prohibit racial discrimination in the contracting process. Part III ends with a study of the damages that would be recoverable in contract for racial discrimination.

Part IV, explains why state common law should prohibit racial discrimination even though there are already federal (and, in some cases, state) statutes that do so. The discussion emphasizes the importance of the common law of contracts in its role as a separate, independent institution that communicates a great deal about values important to this society. The Article concludes with a proposal to include a new section that prohibits racial discrimination in entering into, performing, enforcing, or terminating a contract in the next Restatement of Contracts.

Keywords: contracts, racial discrimination

JEL Classification: K12, J71

Suggested Citation

Williams, Neil Gregory, Offer, Acceptance, and Improper Considerations: A Common-Law Model for the Prohibition of Racial Discrimination in the Contracting Process. George Washington Law Review, Vol. 62, p. 183, 1994, Available at SSRN: https://ssrn.com/abstract=1120910

Neil Gregory Williams (Contact Author)

Loyola University Chicago School of Law

25 E. Pearson
Chicago, IL 60611
United States

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