Contract Theory and the Limits of Reason

46 Pages Posted: 25 Feb 2015 Last revised: 29 Mar 2017

See all articles by Efi Zemach

Efi Zemach

Hebrew University of Jerusalem - Faculty of Law

Omri Ben-Zvi

Hebrew University of Jerusalem - Faculty of Law

Date Written: September 15, 2016

Abstract

It is widely agreed that no theory of contract is fully adequate – all theories face formidable descriptive, normative and conceptual difficulties. Why has contract scholarship failed to produce an acceptable theory of contract law, even after several decades of nuanced and sophisticated theoretical efforts? This Article answers this puzzle by offering a novel meta-theory of contract scholarship that focuses on the aesthetics of various contract theories. An aesthetic commitment, under this understanding, is a pre-theoretical presupposition regarding the form (as opposed to the substance) of legal discourse. The Article argues that jurists harbor several different aesthetics and often employ them interchangeably and without noticing. The continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct, contract theories, which are based on different aesthetics, are destined to continue struggling indefinitely. The Article explores four leading contract theories – promissory, reliance, economic and pluralistic conceptions of contract – and illustrates the manner each theory's substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. In so doing, the Article shows how the aesthetic point of view can better explain these theories' specific strengths, weaknesses and disagreements, and grounds its prediction that contract scholarship is not likely to produce a widely accepted theory any time soon.

Keywords: Contract, Promise, Contract law, Contract theory, Philosophical foundations of contract law, Jurisprudence, Philosophy, Law and philosophy, Will theory, Expectation interest, Reliance interest, Restitution interest, Corrective Justice, Economic efficiency, Pluralism.

Suggested Citation

Zemach, Efi and Ben-Zvi, Omri, Contract Theory and the Limits of Reason (September 15, 2016). Tulsa Law Review, Vol. 52, 2017. Available at SSRN: https://ssrn.com/abstract=2568856 or http://dx.doi.org/10.2139/ssrn.2568856

Efi Zemach (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Omri Ben-Zvi

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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