August 25, 1901|
Hechingen, Hohenzollern, Prussia
|Died||January 21, 1998
Berkeley, California, U.S.
|Institutions||Yale Law School
University of Chicago Law School
University of California, Berkeley School of Law
|Alma mater||University of Berlin|
Friedrich Kessler (August 25, 1901 – January 21, 1998) was an American law professor who taught at Yale Law School (1935–1938, 1947–1970), University of Chicago Law School, and University of California, Berkeley School of Law. He was a contract law scholar, but also wrote of trade regulation law. He was regarded as a member of the American Legal Realism School.
Born in Hechingen, Province of Hohenzollern, in 1901, he received his law degree from the University of Berlin in 1928. He was a research member of the Kaiser Wilhelm Institute of Foreign and International Law in Berlin until 1934, when he fled Germany to avoid Nazi persecution—his wife Eva Jonas was Jewish. Friedrich Kessler died on January 21, 1998, in Berkeley, CA.
His most celebrated article, Contracts of Adhesion—Some Thoughts About Freedom of Contract, coined the phrase "contract of adhesion" to describe a contract between parties of greatly unequal bargaining power, such that the dominant party could impose a "take it or leave it" demand on the weaker party. He argued that in such situations Eighteenth or Nineteenth Century concepts of freedom of contract were unrealistic and should be discarded. Kessler saw such contracts as mocking freedom of contract, making it "a one-sided privilege,” in which the historical evolution of the law from status to contract was reversed—a movement "greatly facilitated by the fact that the belief in freedom of contract has remained one of the firmest axioms in the whole fabric of the social philosophy of our culture.”
Others, among his many articles, were:
- Natural Law, Justice and Democracy—Some Reflections on Three Types of Thinking About Law and Justice, 19 Tulane L. Rev. 32, 52 (1944)
- Automobile Dealer Franchises: Vertical Integration by Contract, 66 Yale L. J. 1135 (1957).
- Contract, Competition, and Vertical Integration, 69 Yale L.J. 1 (1959) (with Richard H. Stern)
- Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study, 77 Harv. L. Rev. 401 (1964) (with Edith Fine)
- Bernstein, Herbert (1993). "Friedrich Kessler's American Contract Scholarship and Its Political Subtext". In Lutter, Marcus. Der Einfluß deutscher Emigranten auf die Rechtsentwicklung in den USA und in Deutschland. Tübingen: Mohr. pp. 85–94. ISBN 3-16-146080-4.
- Joerges, Christian (1995). "Demos vs. Ethnos in Private Law: Friedrich Kessler and his German Heritage". Yale Law Journal 104 (8): 2137–2143. JSTOR 796995.
- Kronman, Anthony T. (1995). "My Senior Partner". Yale Law Journal 104 (8): 2129–2131. JSTOR 796993.
- McNulty, John K. (1995). "A Student’s Tribute to Fritz Kessler". Yale Law Journal 104 (8): 2133–2136. JSTOR 796994.
- McNulty, John K. (Winter 1981-82). "Dedicated to Friedrich Kessler Upon His Eightieth Birthday, August 25, 1981". Yale L. Rep. at 13.
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