Posted: 21 Apr 2004
Promises and contracts establish relations among the persons who engage them, and these relations lie at the center of persons' moral and legal experience of one another. But in spite of the obviously communal character of promise and contract, the most prominent accounts of these practices remain firmly individualistic, seeking to explain the obligations that they involve in terms of one or another service that these agreements render to the parties to them taken severally. This Article articulates a new theory of the philosophical foundations of promise and contract that reclaims for practical philosophy the relations among persons that promises and contracts create and that the dominant, individualistic accounts obscure.
The Article proposes that promises and contracts establish relations of recognition and respect - and indeed a kind of community - among those who participate in them and explains the reasons that exist for making and for keeping promises and contracts in terms of the value of this relation. Although the article takes up promises generally, and proposes new solutions to familiar philosophical problems concerning the will's place among the grounds of promissory obligation, the Article takes up contract in particular in greater detail. The Article argues that contract participates in the ideal of respectful community even though contracts typically arise among self-interested parties who aim to appropriate as much of the value that the contracts create as they can. The Article finds the value of community directly in the form of the contract relation rather than in any substantive ends that the parties to contracts pursue. It presents a detailed account of the characteristic relations that this form of community, which it calls collaboration, involves.
Moreover, the Article emphasizes that the collaborative contract relation that it characterizes is no mere academic conceit but is instead immanent in actual legal practice. In particular, the Article considers two familiar doctrinal puzzles presented by the law of contracts - involving the consideration doctrine and the expectation remedy - in light of the collaborative values that it finds in the contract relation. It argues that the collaborative theory of contract underwrites a more satisfactory account of these doctrines than has so far been possible.
Finally, the Article concludes by suggesting that the collaborative ideal makes it possible to return contract, understood as a distinctive category of legal obligation, to the center of our legal system and to connect contract to broader principles that lie at the foundations of modern, pluralist, economic and political institutions. In additional to the legal theory of contract, the article therefore also contributes to the political theory of liberalism and indeed of the market.
Throughout the analysis, the article applies a philosophical methodology that avoid casuistry in favor of an effort to elaborate the moral meanings of existing legal institutions and practices, and in this way to reveal the moral relationships that are immanent in the law. The approach promises to connect moral philosophy to legal doctrine in way that casuistic analysis can never do.
Suggested Citation: Suggested Citation
Markovits, Daniel, Contract and Collaboration. Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=531683