Contract Law and the Common Good

Theoretical Inquiries in Law, 2019

This Article challenges Hanoch Dagan and Michael Heller's choice theory of contract, according to which contract law is autonomy-enhancing. I make three points: first, the choice theory of contract cannot clarify the critical normative distinction between enforceable formal contracts and unenforceable informal promises. Second, I develop the roads/contract-types analogy: instead of promoting individuals' autonomy and enhancing their choice among different projects, most contract types are justified by the preexisting preferences of citizens. Finally, I outline a teleological justification of contract law that is different from that propounded by Dagan and Heller. On this view, contract law should remain neutral as to which conception of the good is commendable and provide individuals with the means of shaping and pursuing a conception of a good life.

IO: Firm Structure, 2016

This Article argues for a vital new pathway to the regulation of contracts in American law. It proposes a theory of public responsibility to safeguard public values that are unprotected by the reciprocal consent of private parties to contract. Challenging the conception of contracts-as-property-rights, it posits that such responsibilities are necessary to redress public harm that is ordinarily not protected by the exchange of contractual promises. If contract law is to support social justice, it ought to surpass restrictive conceptions of equity that focus wholly on corrective injustice between contracting parties at the expense of public deterrence. If contract regulation is to promote the public good, it ought to transcend limiting theories of consent that reduce public responsibilities to imperfect obligations that are binding in morality, but not in law.

Persona y Derecho

Since Professor Gilmore wrote his famous book The Death oi Contraet l , it would seem that this branch of the law of obligations has been more discussed than ever in the English-speaking countries. Suffice it here to recall Atiyah's The Rise and Fall oi Freedom oi Contraet 2 and Promises, Morals and Law 3 ; Fried's Contraet as Promise 4 ; Macneil's The New Social Contraet 5 ;

2017

This chapter delves into the nature of the pactum as both substantial and functional bond as well as mythical canon of any contractual-constituting initiative in the public and private spheres. The aim is to show that the movement toward the conceptualisation of good faith as an organising principle and implied term in the Common law tradition is due to the need to counterbalance our inhuman condition as made it manifest by the humanitarian façade of the modern constitutional project. This claim is supported by an unconventional method of investigation that will promote the comparison between the role of political action at the public level and the increasing utilisation of the doctrine of good faith in Contract law theory and practice.

This rejoinder to the foregoing critiques of the author's book, The Limits of Freedom of Contract, focuses on several themes: a) what range of contractually-related issues do courts possess the requisite institutional competence to address? b) whether problematic normative issues in contract law are amenable to rational analysis and at least provisional resolution, or are inherently indeterminate, contingent, and political? c) what the value of individual autonomy implies in terms of the type of transactions parties should be permitted to engage in? d) whether an "internal" rather than consequentialist theory of contract law is conceivable? and e) whether autonomy values are inconsistent with welfare values in women's participation in market activities?

Indiana Journal of Global Legal Studies, 2007

This paper focuses on contract law as a central field in contemporary regulatory practice. In recent years, "governance by contract" has emerged as the central concept in the context of privatization, domestic and transnational commercial relations, and law-and-development projects. Meanwhile, as a result of the neo-formalist attack on contract law, "governance of contract" through contract adjudication, consumer protection law, and judicial intervention into private law relations has come under severe pressure. Building on early historical critique of the formalist foundations of an allegedly private law of the market, the paper assesses the current justifications for contractualgovernance and posits that only an expanded legal realist perspective can adequately explain the complex nature of contractual agreements in contemporary practice. The paper argues for an understanding of contracts as complex societal arrangements that visibilize and negotiate conflicting rationalities and interests.

2001

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand, are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand, are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.

European Review of Contract Law, 2021

In his most enlightening book Benson undertakes to give a public justification of contract law, which he distinguishes from a philosophical justification. This essay argues that this opposition is unsound. Benson’s justification is philosophical because it is internal: the justification contract provides for itself. As the justification is internal, the subject of the justification – those who, through it, understand the authority of contract – is the subject of what is justified: the subject of contract. This is the true public of the justification of contract law. And its justification to that public is nothing other than its philosophical justification. In a second step, the essay sketches how the justification of contract law develops so as to reveal its subject to be a concrete universal: civil society. Since that is understood in its philosophical justification, that, too, does not place the publicity of contract law in opposition to its philosophical understanding.

In this chapter I focus on the interaction between the rule of law and contract: the norm of the rule of law offers contract support for its legal form as an agreement between equals, while contract offers the rule of law a mechanism by which its normative generality can be established beyond the limits of formalised public law. To understand the power of the rule of law norm beyond the realm of formalised law, we need to understand how the mechanisms of contract both respond to the rule of law’s normative agenda, but also carry this agenda past the limits of formalised legality.