Daniel Markovits, Contract and Collaboration, 113 YALE L.J. 1417 (2004).
(Abstract prepared by Yale Law Journal)
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 morality of promise and contract in terms of the value of this
relation. Although the Article takes up promise quite generally,
and proposes new solutions to familiar philosophical problems
concerning the will’s place among the grounds of promissory
obligation, the Article emphasizes the particular case of contract,
which it addresses in much 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 peculiarly contractual variety 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 intentions that
this form of community, which it calls collaboration, involves.
The Article also emphasizes that contractual collaboration is
no mere academic conceit but instead arises in actual legal
practice. In particular, it 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 available.
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 addition to the legal theory
of contract, the Article therefore also contributes to the political
theory of the market and indeed of liberalism.
Throughout the analysis, the Article applies a philosophical
methodology that avoids casuistry, favoring an effort to elaborate
the moral meanings of existing legal institutions and practices,
and thus to reveal the moral relationships that are immanent in
the law. This approach promises to connect moral philosophy to
legal doctrine in a way that casuistic analysis cannot.