미국 계약법의 현대적 이론에 관한 서론적 고찰 - Grant Gilmore의 “The Death of Contract”을 중심으로 -

This article explores contemporary theories of contract law in the United States, especially focusing on Grant Gilmore’s “The Death of Contract Theory”. Gilmore’s pronouncement of the death of act was the first challenge to neoclassical contract law. His book created a storm of controversy, and the event set the stage for many of the critiques of contract that were to follow. In The Death of Contract, Gilmore presented his own account of the rise and fall of classical contract law. According to Gilmore’s view, classical contract was so extreme that it could not long survive outside the rarefied air of law school classrooms. In addition, he pointed out the general defects of classical law and argued that the boundaries of contract collapsed, allowing incursions by unjust enrichment in cases of benefit-based liability, and by promissory estoppel in areas such as detrimental-based liability. He concluded that contract law was being reabsorbed into tort law, which was becoming again the residual category of civil liability. The Korean Civil Code was enacted based on the classical will theory and discrete contract model. Today, however, some contractual problems with the different negotiating power and asymmetries of information are arisen in the Korean society. In addition, in recent years, there is a demand for a new theory (e.g., relational contract theory) that can be substituted for the current Korean contract based on the classical will theory and discrete contract model. We need to pay more attention to contract law theories to fill the gap between ‘contract’ as a phenomenon and ‘contract law.’