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.
THE PUBLIC DIMENSION OF PROMISING
"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. …