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'Contract Thinking' was Marvin's Fatal Flaw

18 Pages Posted: 28 Mar 2001  

Ira Mark Ellman

Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley

Date Written: March 27, 2001


This short essay was written for a symposium on the 25th anniversary of Marvin v. Marvin, the California Supreme Court decision recognizing the enforceability of cohabitation contracts. It observes that Marvin turned out to be far less significant in the lives of cohabiting couples than many had thought at the time it was decided, and argues that the reason is its misguided reliance upon contract as the basis of claims between partners in an intimate relationship. That reliance was misguided because while couples often think of their relationship as reciprocal, they do not think of it as contractual in any sense that the law can sensibly employ as the basis of liability. A legal regime in which contract is the main source of legal obligation will therefore lead to the rejection of compelling claims by courts unwilling to distort contract doctrine. The difference between reciprocal and contractual relationships, and ease with which they may be confused, is briefly explored. The essay concludes that there is a separate source of legal duty arising from relationships themselves, distinct from contract; that obligations arising from marriage are in fact relational rather than contractual; and that sensible rules governing legal duties between unmarried cohabitants would not ask whether they had a contract, but whether their non-marital relationship shares with marriage those qualities which lead the law to impose reciprocal legal duties on husbands and wives. The essay finally observes that a relational approach, based upon status rather than contract, has been recommended by the American Law Institute, has been enacted in many other countries, including Canada, and is the likely future of American law. Marvin's contract conception of obligation in intimate relationships therefore seems a relic of a failed experiment more than a harbinger of the future.

Keywords: Marvin, unmarried cohabitation, status and contract

JEL Classification: K39

Suggested Citation

Ellman, Ira Mark, 'Contract Thinking' was Marvin's Fatal Flaw (March 27, 2001). Available at SSRN: or

Ira Mark Ellman (Contact Author)

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States
480-965-2125 (Phone)


Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

Berkeley, CA 94720-2150
United States

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