Contract as Deliberation

By Lomfeld, Bertram | Law and Contemporary Problems, Spring 2013 | Go to article overview

Contract as Deliberation

Lomfeld, Bertram, Law and Contemporary Problems



Contracts are communication. "'Will you give it?' 'I will give it.' 'Do you promise?' 'I do promise.' 'Do you pledge your faith?' 'I do pledge my faith.' 'Do you guarantee?' 'I do guarantee.' 'Will you do this?' 'I will do it.'" (1) What grounds the commitment of a contractual communication? Contract theory circles around the question of what is the "basis of contract." (2) Freedom, efficiency, reliance, and equality are perhaps the most prominent among a host of competing grounds. Even if one could separate a mere analytical question of how contracts are constructed, (3) at least two opposing narratives remain: promissory and conventionalist theories. Contracts are often said to mediate pluralistic interests within and between modern societies. But the many worlds of contract theories are deeply divided themselves.

The aim of this article is to construct an integral core for one pluralist theory of contract based on public reason. Its main task is to reconcile the promissory account of contract with a public dimension, which is inherent in efficiency, justice, and reliance theories of contract. The first step of that endeavor will be to reconstruct recent promissory contract theories as a turn towards public reason. (4) The second step liberates conventionalism of its utilitarian chains and shows its plural normative core. (5) Yet a foundationally pluralistic theory of contract needs even to break off with the dichotomy of deontological and consequentialist constructions. An integrated pluralistic theory must overarch intention and convention. Pluralistic theory needs a pragmatic procedural underpinning.

The consequent response to foundational value pluralism is a deliberative contract theory. (6) Under the deliberative contract scheme, contract is not governed by one single ethical principle. No monistic answer can hope to explain the whole of contract law. Only a deliberative framework is capable of capturing the political battle between competing ethical principles. Individual freedom has the same normative weight as, for instance, fairness, security, efficiency, or social welfare. Such a deliberative reading of contract law is not only consistent with at least some promissory and conventionalist theories of contract. Taking the deliberative space of reasons as the foundation of contract theory, the conflict between intention and convention even blurs. The common element of contract might be seen as the existence of a special discursive commitment between the parties. (7) Within these inferential practices of giving and asking for reasons, contract is an explicit promise of reasons. (8)

The communicative theory of contract offers an integral framework for the exchange of plural normative reasons. It could offer a useful argumentative grammar for lawmakers, judges, and legal scholars. Because it refrains from preferential treatment of any substantive normative contract principle, it could even mediate between opposing camps of contract theory itself. Yet one normative conclusion persists: contract has lost its private innocence. Within a deliberative frame, contract never is completely private--it is a political institution. Every contract has an implicit public dimension of reasoning.



"A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." (9) Continental lawyers stumble over section 1 of the Restatement (Second) of Contracts. For the common law tradition, "[t]he common element of all contracts might be said to be a promise." (10) Despite a legal decline of freedom of contract, (11) about thirty years ago Charles Fried initiated a new focus on deontological readings of contract. (12) From Fried's "moralist of duty" perspective, "breaking [a] promise is wrong." (13) There is "a general obligation to keep promises, of which the obligation of contract will be only a special case--that special case in which certain promises have attained legal as well as moral force. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Contract as Deliberation


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.