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.The common view is thatcontract had always been about abstract parties combining in transactionsof their own making.The view that emerges from Parsons s discussion ofimplication, on the other hand, suggests that webs of patterned relation-ships preexist the parties, who can then choose to enter them.And the factthat the former view is such a taken-for-granted part of our current visionof contract is not evidence about the history of contract, but rather a testa-ment to the success of the classical revolution in contract theory.41agent and principal, or duties of factors and of brokers are granted more than three times the space of hisdiscussions of general contract questions such as assent or consideration.See Theophilus Parsons, TheLaw of Contracts (1st ed.1853).Parsons was Dane Professor of Law at Harvard, the same chair eventuallyheld by Williston, who, before writing his own treatise, edited the eighth edition of Parsons s treatise,which appeared in 1893.40.2 Parsons, Law of Contracts, 27.Note that the examples of the principle are not given in abstrac-tions of A and B, but rather as concrete relations, including lessor and lessee, mortgagor and mortgagee,charter party shipper, and so on.See id.at 27 28.41.The question arises as to how the view of contract as a relation with societally defined duties intowhich the parties may enter can coexist with a view of contract as obligation created by the intent ofthe parties.At least two issues, one substantive and one of legal reasoning, come up in an attemptedexplanation.On the substantive level, one would have to question even the short-lived dominance ofthe will theory.Thus, while it is clear that the will theory became popular among contract treatise writ-ers around the end of the eighteenth century (see, e.g., the first English-language treatise devoted tocontract, John Joseph Powell, Essay upon the Law of Contracts and Agreements [1st ed.1790]), contract 204 t h e n a r r a t i v e s o f i n c o m p l e t e c o n t r a c t sCompleting Incomplete ContractsThe common narrative critiqued here holds that completion of incompletecontracts by the courts is a relatively recent phenomenon, that courts used tointerpret and construe contracts formalistically and narrowly.Sometimes, thisview manifests itself in statements that assume that interpretive tools like cus-tom and usage, or gap-fillers like reasonable time for performance, are recentdevelopments.42 To the extent that statements like this are taken at face valueto mean that custom and usage or the supply of a reasonable time term aremodern (say, UCC-era) innovations, they are easily refuted.43 The more seri-ous claim is that courts did not intervene to complete incomplete contracts,and especially that they did not do so by imposing a duty of good faith in theperformance of contracts.Thus, contracts scholars who have dealt intensivelywith good faith commonly hold that the obligation to perform a contractin good faith was relatively undeveloped until the middle of the twentiethcentury, and that the main impetus to its elevated status was the work of KarlLlewellyn in drafting the UCC.44 This claim seems at first glance to be bornedoctrine continued to be influenced as much by a tradition of commercial law, which was not a productof will theory, as by the treatises.In other words, the recognized contract types of commercial relation-ships and customs formed the backbone of the mechanics of contract doctrine, while the treatise writerswere proceeding with the task of generalizing and rationalizing.On the level of legal reasoning, the issueis how much force first principles were to have over concrete rules, and what kinds of mediating deviceswere available to deal with contradictions.In simplest terms, up until the classical period, students ofcontract were concerned with showing how the various principles of contract and the rules of contractcohered.They were not, however, in the business of deriving particular rules (or critiquing the existingrules) by deduction from the principles.This was the methodological revolution instituted by classicaltheorists.On the relationship between contract types and general contract theory, see Gordley, Philo-sophical Origins 158 60.On the way preclassical treatise writers like Parsons used principles, see DuncanKennedy, The Rise and Fall of Classical Legal Thought chap.4 (unpublished manuscript, 1975).Foran indication that the priority of legally implied terms was still an issue for classical contract theory, see2 Williston, Law of Contracts, § 615.42.See, e.g., Douglas K.Newell, Will Kindness Kill Contract? 24 Hofstra L.Rev.455 56 (1995) (im-plying that resort to usage arises with the UCC) and 472 (contrasting resort to usage with the classicaltheory of Williston ); Scott, Case for Formalism ; Scott, Uniformity Norm. 43.If we take Parsons as a representative of preclassical law, and Williston as representative of the clas-sics, their clear incorporation of these interpretive tools is enough to refute the strong version of theclaim.See 2 Parsons, Law of Contracts, 47 59; 2 Williston, Law of Contracts, §§ 648, 652.44.See E.Allen Farnsworth, Good Faith Performance and Commercial Reasonableness Under theUniform Commercial Code, 30 U.Chi.L.Rev.671 (1963).Elsewhere, Farnsworth articulates the posi-tion thus:Credit for the contemporary recognition of the doctrine of good faith instead goes to Professor KarlLlewellyn, Chief Reporter for the Uniform Commercial Code.Llewellyn, who had taught at Leipzig,was inspired not by Mansfield, but by the Treu und Glauben provision of the German Civil Code
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