International Construction Law Review
CONFESSIONS OF A LAW TEACHER
JUSTIN SWEET
John H Boalt Professor of Law Emeritus
My friend and colleague Professor Peter Gauch of the University of Fribourg in Switzerland told me at our last meeting that he has taken to story-telling to get his points across. I used the same technique in my Sweet on Construction Law1
, a favourable review of which appeared in this journal.2
I will continue this breezy, hopefully informative technique, in this brief paper. I hope to demonstrate two things. First, that law teachers, at least the good ones, do not simply repeat their lectures year after year. Nor do they dryly read ponderous texts they have written. Finally, they do not, or should not, mechanically teach a case the way they have always taught it. Just as lawyers learn from every case they handle, law teachers should constantly learn from what they study and when they teach. Teaching, like practice, requires life-long, constant study and learning. This should be reflected each time the teacher enters the classroom.
Second, there is a marked tendency for even good contract law teachers to disregard the difference between an adhesion contract and an industry contract. An adhesion
contract is pre-prepared by or for the controlling party with its interests almost exclusively in mind and presented to the other party largely on a take-it-or-leave basis with little or no opportunity for real negotiation. By way of an aside I do not say the stronger party. The party in control, such as an architect using a standard contract published by the American Institute of Architects, which I shall refer to as the AIA, may not in terms of sheer bargaining power be the stronger party. Yet he may still have control of the contract because of his professional status, his superior knowledge of the transaction and the fact that his prestigious professional association has prepared a contract that can be pulled out of a drawer. An industry
contract, on the other hand, is prepared by a group that reflects the interests of both parties to a contract (the Peanut
case I shall describe later in this paper) or an imperfect group, such as the AIA, which lacks real owner (employer) input where the owner is a party to the contract.
In the early “sixties”, I was searching for a case for a casebook I was preparing that illustrated impossibility of performance, more precisely, the effect of subsequent unforeseen events on the obligation to perform created by a contract One formula sometimes employed by the common law is
1 This was published by the Forum on the Construction Industry of the American Bar Association in 1997.
2 [1998] 15 ICLR 482.
[2001
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