Contracts project our intentions outwards, prolonging our autonomy into an uncertain future.1 They allow people to create new legal structures; to âmake arrangements for themselves, and so to change their respective rights and dutiesâ.2 Law promises to support that creative agency; women often distrust that promise. The first debate here introduces critiques of freedom of contract which are concerned with gender and power. The second explores efforts to address those critiques through relational contract theory. For reasons of space, I focus here on the common law rather than statute, and on commercial contracting rather than consumer law.
Debate 1
Is âfreedom of contractâ really freedom?
Berlant uses the phrase âcruel optimismâ3 to describe things we desire and hope for even though they are obstacles to our flourishing. âFreedom of contractâ exemplifies cruel optimism. The cases you read during your studies involve people who bargain for things â dream homes,4 beautiful objects,5 financial security,6 or maybe even chances of fame7 â that speak to their identity and goals. Marx wrote of contractual exchange that âwhat seems to throb there is my own heartbeatâ.8 However, contractual freedom is a thin equality of opportunity, in limited circumstances, to participate in certain capitalist projects. âClassicalâ9 contract law emerged alongside capitalism, as markets became objects of specialist knowledge and regulation. Contract law supposedly mirrors the market, responding to bargains rather than shaping them. âFreedom of contractâ promises that states make no detailed public plan for market transactions. Nineteenth-century laissez-faire economists maintained that, left to their own devices, individuals would voluntarily exchange scarce resources with one another, allowing them to gravitate to their most efficient uses.10 Law, accordingly, insists that, although the state stands ready to resolve disputes,11 intervention is exceptional and only takes place at the end of the contractâs life. Then law defers to our intentions.12 Thus, contract is âprivateâ rather than âpublicâ law, produced by autonomous individuals rather than by government fiat.
We should be suspicious of easy distinctions between (public) governmental regulation and (private) self-regulation. Law actively constructs opportunitiesfor judicial intervention in contractual disputes: those are neither obvious nor neutral.13 For example, the promise of judicial deference to partiesâ intentions is misleading. One of the first lessons you learn is that subjective intentions do not matter to contract doctrine: only the outward âobjectiveâ appearance of agreement counts.14 As Radin writes, law idealises the bargaining process as an occasion for detailed communication and clear expression of voluntary consent to each contractual term. But law does not actually require any such communication. It is enough for contract terms to bind us that we assent to them, for example by signature.15 The law on incorporation of terms means that we need not always have specific knowledge of each element of our obligations. Informed consent is not always required: it is enough that we have âreasonable noticeâ of the contractâs terms (whether or not we fulfil the corresponding duty to read them).16 Thus, passivity, not shared creativity, is often contractâs hallmark.17
Nevertheless, courts treat contracts as if they embodied freely choosing subjectsâ active intentions. This fiction18 has a pragmatic technical function: it allows courts, by formalistically reasoning through contractual disputes, to bypass the lived difficulties of contracting. Thus, it eliminates a source of market uncertainty: if we know that the vagaries of human intention have limited impact on judicial decision-making, we feel more confident about entering into complex contracts. This minimalist approach makes some transactions more secure and more readily calculable. It also performs a political function.19 It allows courts to bypass detailed engagement with the conditions in which contractual intention is formed, producing rules that are âsingular, daunting, rigid and cocksureâ.20 Leaving messy reality behind, law can turn to idealised narratives of contractual freedom. The idea of âobjectivityâ, so often repeated in your contract course, suggests rigour and certainty, but also responsiveness to shared market rationality. That rationality, however, may not be shared by all market actors:21 the preferred practices of some are made the universal rule in order to discipline others. This is where gender inequality comes in.
Ideal contractual subjects are strong, independent, self-possessed and productive. They are autonomous beings who possess and trade in concrete legal rights.22 This ideal is rooted in a particular theory of equality. Classical contract theorists were influenced by liberal political thinkers who argued that men should be owners of their own labour and property, and trade them freely with others. Contract was often contrasted with status:23 freedom to contract implies equal capacity to bargain in the market, unshackled from traditional authority. This vision of universal equality seems admirable, but some subjects will have to work harder than others to claim that equality.24 Recall nineteenth-century feminist struggles for married womenâs right to form property and employment contracts. As Pateman writes, the originary contract between men and women was the sexual contract, under which married women supposedly willingly subordinated themselves to their husbands.25 Women were not fully in possession of themselves,26 but were rather objects to be exchanged between men.27
Contract law now formally includes a wider range of subjects, including women, but substantive inclusion is another matter. We have said that contract rarely enquires into the forces that produce our thoughts, plans or desires: it flattens and generalises experience. If contract law presumes some equality between market actors, it is âequal measureâ28 with idealised commercial men. Contract makes persons equivalent to one another in an abstract sense, apportioning and ratio...