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Contracts of Indemnity and the Statute of Frauds, 41 Harvard Law Review 689 (1928)


ARULE of law is a statement of uniformity of behavior, whether of planets or atoms or men - a statement by which their future behavior can be predicted with reasonable assurance. Many such statements turn out to be inaccurate or even wholly worthless, for predictions do not always come true. If the stated
rule is part of the common law, it purports to represent past experience,
and is based upon a uniformity of action by judicial and executive officers of the state. It enables one to predict like action in the future by such officers. That such predictions have some measure of accuracy is witnessed by the fact that a large legal profession can make a living, not only as advocates in a litigation but also as advisory counsel to prevent litigation and to lay such a foundation that future litigation will be successful. If the stated rule is statutory law, it purports to direct human behavior for the future, and again enables one to predict the action of judicial and executive officers. These predictions also have a certain amount of accuracy, an amount that should increases as the statute grows older and its effect upon judicial and executive action becomes a part of experience.

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