Professor Tomain assails the myths holding that contract law is either complete and unitary or hopelessly indeterminate. He contends that a distinction must be made between market situations, which require a more formal analysis, and nonmarket transactions to which a more particularized analysis should be applied. Making the market/nonmarket distinction permits flexibility of methodology and considerations of economics, politics, and morals as appropriate, without forcing the conclusion that contracts analysis is totally without structure. Professor Tomain advocates application of reflective doctrinal analysis which tests the sufficiency of a rule of law and reforms the rule if it is not supported by sound policies. The analysis should relate form to content by recognizing that contract rules are dictated by contract types. He demonstrates that consistent workable decisional rules can be developed, even for nonmarket transactions, by keying in on the subject matter of the contract. Professor Tomain fully illustrates how the market/nonmarket distinction and reflective doctrinal analysis are employed to examine and, when necessary, reform rules of contract law by analyzing the issue whether a promisee should be afforded relief or nonpecuniary harm resulting from a promisor's breach in a nonmarket transaction.
Tomain, Joseph P., "Contract Compensation in Nonmarket Transactions" (1985). Faculty Articles and Other Publications. 249.