What is a Contract?: The Absent Author of the Written Contract and the Function of Certain Conventions of Drafting and Construction

35 Pages Posted: 13 Oct 2005

Abstract

This paper considers the concept of the "author" and its role in defining the nature of a text in light of Michel Foucault's essay "What is an Author?" Taking up his suggestion that the fictional, constructed author of literature functions to limit the possibilities of meaning of a text, the paper explores how it might apply to the genre of contracts. While Foucault explicitly identifies contracts as authorless texts, this paper aims to identify other generic manifestations of the "author function" that attempt to stabilize meaning in contracts' written forms. Specifically, this paper examines prevalent boilerplate provisions and conventions of drafting and construction that have emerged in written contracts in the absence of an author. In doing so, the paper considers the relationship between the agreement and the written contract in contract law and interpretation, with an eye to the importance of delimiting the meaning of language in the law, and in the texts of contracts, in particular, as ostensible manifestations of consensus. By examining the contemporary form of the written contract in terms of boilerplate and other drafting conventions that often inscribe fictions of stability or limitation of meaning into the contractual text, the paper seeks to further an understanding of the written contract as a genre in which the author function or an analogous limiting principle manifests itself without reference to the individual. Such an analysis seeks to shed light not only on the nature and function of the written contract but on the nature of the discourse of the law more generally and the ways in which it defines itself in contrast to that of literature.

Suggested Citation

Krastner, Tal, What is a Contract?: The Absent Author of the Written Contract and the Function of Certain Conventions of Drafting and Construction. Available at SSRN: https://ssrn.com/abstract=814068 or http://dx.doi.org/10.2139/ssrn.814068

Tal Krastner (Contact Author)

Princeton University ( email )

22 Chambers Street
Princeton, NJ 08544-0708
United States

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