The Yale Law Journal

May 2004

Contract and Collaboration

Daniel Markovits
113 Yale L.J. 1417 (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 the most prominent accounts of these practices nevertheless remain firmly individualistic, seeking to explain the obligations that such agreements involve in terms of one or another service that they 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 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.