Private Law Theory

ABSTRACT
In ‘Pseudo-Contract and Shared Meaning Analysis’, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called ‘contracts of adhesion’ in particular and for ‘boilerplate’ in general. But at the most fundamental level, the Kar and Radin’s work is about the nature of contractual communication. They answer the question, ‘How do contracts mean?’, by proposing a theoretical structure, which they name ‘Shared Meaning Analysis’. This Essay focuses on ‘contractual communication’: it interrogates the philosophical and linguistic presuppositions of shared meaning analysis and offers, in embryonic form, a rival view.

This Essay investigates the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication: the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinction ‘situations of contractual communication’ and interrogating Kar and Radin’s shared meaning analysis. Part III interrogates Kar and Radin’s distinction between ‘contract’ and ‘pseudo-contract’ via the idea of metalinguistic contestation. The Conclusion of the Essay briefly reflects on the significance of Kar and Radin’s project.

Solum, Lawrence B, Contractual Communication (April 1, 2019). Harvard Law Review, forthcoming.

First posted 2019-04-01 16:16:42