Contracting parties can negotiate death and expressly deal with it in their written contracts. They seldom do, perhaps because of social taboos about discussing death. When the agreement fails to directly say whether the contract lives or dies upon an obligor’s death, two bedrock principles of contract law conflict. On the one hand, serious agreements should be enforced; on the other hand, you should not be forced into a contract with a stranger. An English court in the days of Shakespeare established rules, and many courts still use those rules and require a decedent’s children or other successors to fulfill farming, construction, and various other contractual obligations of the dead. Economic life is different from 400 years ago in England. Occupations are less often “inherited.” Today, children and other successors often make their own way in the world unencumbered by the vocational and geographic choices of their parents. In many situations today, requiring a child or other successor to imitate the deceased, and forcing the surviving contract party to accept performance from an out-of-town novice, is commercial senselessness. This Article proposes an ascribed-intent approach for dealing with many contracts of the dead. “No one can trace up this branch of the law very far without becoming entangled in a thicket, from which [it will be difficult to extricate].”
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William A. Drennan,
Contracts of the Dead: When Should They Haunt the Living?,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol49/iss1/9