Washington Law Review


Every year, more than 100 reported court opinions consider the question of whether an outsider can sue for damages under a contract made by others—in part because the law is so ambiguous. While contract enforcement by a third party is controlled largely by the facts of the particular case, it also materially depends upon the relevant legal standards. At present, not just the standards, but also the reasons for these standards, are unclear. Eighty years ago, Lon Fuller, a professor teaching contracts at a then-Southern law school, and William Perdue, a student at that school, significantly clarified and improved decision-making on damages issues in contract law by proposing a new vocabulary and analytical model. The senior author of this Article is a professor at a Southern law school, but he does not need an academic Lloyd Bentsen to tell him that he is “no Lon Fuller,” and the younger co-authors hold no “William Perdue illusion,” given that Mr. Perdue was the father-in-law of their law school dean. Nonetheless, we believe that the new vocabulary and analytical model we are proposing would clarify and improve decision-making on third party contract rights.

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