Publication Date

1988

Journal

Cornell Law Review

Abstract

The article explores the debate over party autonomy in the law of servitudes, particularly focusing on the role of foresight and transaction costs. It argues that while freedom of contract is a foundational principle, the limitations of human foresight and the potential for high transaction costs justify limited judicial intervention to modify or terminate servitudes when circumstances change. The author critiques Professor Epstein's argument that perfect foresight would obviate the need for intervention, emphasizing that real-world contracting parties often fail to anticipate future changes adequately. The article ultimately advocates for a balanced approach that enforces servitudes but allows for judicial oversight under certain conditions.

Volume

73

Issue

5

First Page

956

Last Page

970

Publisher

Cornell Law School

Disciplines

Contracts | Judges | Law | Property Law and Real Estate

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