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Contract Design and the Structure of Contractual Intent

Jody S. Kraus

University of Pennsylvania Law School

Robert E. Scott

Columbia University - Law School

September 14, 2011

New York University Law Review, Vol. 84, p. 1023, 2009
Columbia Law and Economics Working Paper No. 350

Modern contract law is governed by a two-stage adjudicative regime - an inheritance of the centuries-old conflict between law and equity. Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially “correct” the parties’ contract by realigning it with their contractual intent. This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties’ contractual intent whenever the formal contract terms fall short of achieving the parties’ purposes. Honoring the contractual intent of the parties is thus the central objective of contract law. Yet little scholarly attention has been given to the structure of contractual intent. Courts naturally identify contractual intent with the parties’ contractual objectives, which we call the “contractual ends” of their collaboration. But reaching agreement on a shared objective is only the first step to designing an enforceable contract. Thereafter, the parties must create the particular rights and duties that will serve as their “contractual means” for achieving their shared ends. The thesis of this Article is that the current regime of contract adjudication conflates the parties’ contractual means with their contractual ends. In so doing, it reduces the range of contractual arrangements to which contract law gives effect, thereby potentially depriving commercially sophisticated parties of essential tools for contract design. Sophisticated actors engage in ex ante determinations of their means of enforcement, choosing whether enforcement is to be either legal or relational and whether legal enforcement should rely on either rules or standards. Both theory and available evidence suggest, therefore, that such parties would prefer a default rule that strictly enforces formal contract doctrine unless they have expressly indicated their intent to delegate hindsight authority to a court. By eliminating the risk that courts will erroneously infer the parties’ preference for ex post judicial intervention, such a regime increases the reliability of formal contract terms and enhances the parties’ control over the content of their contract.

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Date posted: May 13, 2009 ; Last revised: September 14, 2011

Suggested Citation

Kraus, Jody S. and Scott, Robert E., Contract Design and the Structure of Contractual Intent (September 14, 2011). New York University Law Review, Vol. 84, p. 1023, 2009; Columbia Law and Economics Working Paper No. 350. Available at SSRN: https://ssrn.com/abstract=1402846

Contact Information

Jody S. Kraus
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
Robert E. Scott (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
212-854-0072 (Phone)
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