Adjective law, it is generally assumed, is a matter for the courts. The only reference to any attempt to control questions of practice and procedure contained in the ordinary treatises on contract law comes under the general proposition that it is against public policy and therefore beyond the power of contracting parties to interfere with the ordinary course of justice. To this proposition there are, of course, exceptions. But the authors generally do not feel called upon systematically to present these exceptions so as to inform the draftsman of a contract just exactly what, if anything, can be done towards supplementing or limiting the ordinary means of enforcement provided by the law in ordinary cases. Nevertheless business men do actually find it advisable to insert clauses in their contracts aimed at the creation of better modes of enforcement than those ordinarily provided by law and at the regulation of details coming in every stage of procedure from the summons through the trial down to final execution. Some of these attempts are ridiculously crude. For example, one great railroad prints on its commutation tickets the statement that any attempt to use the ticket after its expiration shall be conclusive evidence of fraud on the part of the holder. There is room, however, for innumerable more carefully devised propositions that will directly or indirectly affect the enforcement of a contract in case of attempted breach or the obtaining of redress in case of an actual breach. An effort will be made here to bring together rather than fully to discuss the various types of attempts that are constantly being made in this direction. From a consideration of them it may appear that they serve a genuine function in the business world and that it is not quite necessary nor proper to deal with them as illegitimate offspring of contract law. They may be roughly classified for our purpose as positive and negative, the former having to do with additional safeguards and remedies not ordinarily provided by the law and the latter with attempts to limit or change the ordinary application of the law to cases of the kind in question.
Contractual Control Over Adjective Law,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol29/iss1/2