Wednesday, September 10, 2008

In Memoriam: Richard E. Speidel (1933-2008)

The fields of contracts and commercial law (as well as ADR) lost an important scholar and a wonderful gentleman Saturday. At the time of his death, Dick Speidel was the Beatrice Kuhn Professor Emeritus at Northwestern University School of Law and a half-time professor at the University of San Diego School of Law. A longtime collaborator of James J. White and Robert Summers, with whose UCC hornbook and treatise I assume all our readers are familiar, Dick served from 1991-1999 as reporter for Revised UCC Article 2 — an experience he recounted in Revising UCC Article 2: A View from the Trenches, 52 Hastings L.J. 607 (2001). Among his many other books and articles are Studies in Contract Law (7th ed. 2008), which he co-authored with Ian Ayres (and previously with the late Edward J. Murphy), Commercial Transactions: Sales, Leases, and Licenses (2d ed. 2004), which he co-authored with Linda J. Rusch (who served from 1996-1999 as associate reporter for Revised Article 2).

USD Law Dean Kevin Cole posted this brief tribute.

1 comment:

Anonymous said...

I am a Chinese scholar majoring American contract law named Sun liangguo teaching in Jilin University Law School. I like to read and study his deep and succinct works. Especially, i think relational contract theory is more feasible than others in China. Relational contract theory is the title of my doctoral dissertation. But i can't understand this theory,and i know professor Speidel is master in this field. So i write a email to ask him many questions. He replied soon. I am excited very much after receiving his reply which contributes to my study. I would not contract him if i had konw he got cancer, i regret greatly when i get this bad new. I miss professor's great academic achievement and his kindmess, and i miss Professor Speidel deeply.
 May God rest his/her soul in peace.
annex: reply letter
It is difficult to summarize the so-called principles of relational contracts because so
many scholars have written about the problem from different perspectives. Moreover, there is no evidence that these principles have been accepted by the courts. So what we have is a lively scholarly debate but no generally accepted principles of relational contracts that can be used by lawyers or courts.

A leading American scholar, now retired, is Ian R. Macneil. His articles and his book, The New Social Contract: An Inquiry into Modern Contractual Relations (1980) are important starting points. For a good discussion of Macneil’s work, see Paul J. Gudel, Relational Contract Theory and the Concept of Exchange, 46 Buffalo L. Rev. 763 (1998). See also James Fox jr., Relational Contract Theory and Democratic Citizenship, 54 Case Wes. L. Rev. 1 (2003). Macneil’s early work was very practical. He showed how the nature of exchange relationships was inconsistent with contemporary contract doctrine, particularly where that doctrine expected the parties to agree on everything at the time of contracting. Macneil argued that contract law should worry more about relationships as they evolve after formation and foster agreed adjustments over time. Macneil’s later work is more theoretical, developing a sociological approach to relationships in general.

Other scholars who have written from a relational perspective include Robert Scott, Stewart Macaulay, and Victor Goldberg. These scholars, especially Scott, resist the invitation of relational contracts for courts to intervene and adjust contracts a change occurs.

A particularly good analysis and discussion is found in Donald J. Smythe, The Doctrine of impracticability and the Governance of Relational Contracts, 13 S. Cal. Interdisc. L. J. 227 (2004), where there is a useful attempt to define a relational contract at page 239-41.

You may have already read my article, The Characteristics and Challenges of Relational Contracts, 72 Nw. U. L. Rev. 823 (2000). In that article I identify several characteristics common to relational contracts and then apply those principles to a contract containing those characteristics but which was decided under modern contract law.

I think you should do some more reading and assume that you have access to the sources cited about. After reading, we can discuss more specific issues that interest you. It is helpful to note that the problem is part of the debate in this country between rules and standards, the former being consistent with economic analysis and the latter being consistent the so-called Realist method.

As for your questions to me, I believe that contract law should be contextual in any event and that relational contract theory makes relevant more rather than less context. As for efficiency, relational contract theory works best when, because of the contract, the search for efficiency by examining the agreement a context ex ante does not work. The parties have been unable or unwilling to reduce their entire agreement to a writing before entering the contract.

With best wishes, Richard E. Speidel