November 2006, Volume 92, Issue 7
Making and Keeping Contracts
by Daniel Markovits
92 Va. L. Rev. 1325 (2006)
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Contracts present two basic practical questions: First, what reasons exist for making them; and second, what reasons exist for keeping them. Certainly the question why one must keep one’s contracts (and when one might breach them) belongs to the mainstays of casuistic moral philosophy and legal practice. And it is equally natural, although perhaps a little less familiar, to ask what reasons a society has to promote contractual as opposed to other forms of coordination, such as bureaucratic regulation or the tort system.
Although a sympathetic reconstruction of our contractual practice must answer both questions together, the most familiar existing theories of contract each address only one and neglect the other. The economic theory of contract emphasizes making contracts but contains no independent account of why contracts should be kept; and the harm and will theories of contract emphasize keeping contracts but contain no independent account of why contracts should be made.
These patterns of inattention render existing theories of contract at best incomplete. Moreover, and more dramatically, the reasons for making and for keeping contracts are intertwined, so that the failures of existing theories to address both questions undermines the accounts that these theories propose of the aspect of contractual practice that they do address. This pattern is not surprising; whereas contracts create relations that have value in virtue of binding promisors and promises together, the familiar theories of contract all focus on benefits that contracts provide to the parties to them taken severally.
These pages therefore organize prominent dissatisfactions with existing theories of contract, together with some new objections that they introduce, into a pattern that is more forceful than the sum of its parts. Along the way, they offer support for an alternative theory of contract that I have elsewhere called the collaborative view, which emphasizes the intrinsic value of the contract relation and naturally treats the reasons for making and keeping contracts together, as belonging to a unified moral whole.
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