ABSTRACT
This Essay develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that flow from the parties’ own actions and expressions. We repudiate the traditionalist view, which misrepresents the task of distilling these obligations as value-neutral, and advance in its stead an alternative approach that grounds interpretation and implication on liberal contract’s tenets of proactively supporting people’s cooperative efforts, while securing contract’s compliance with relational justice. This account offers conceptual clarity, elucidates and vindicates significant parts of contemporary law, and suggests several normatively attractive pathways for reform. Notably, it allows us to sketch a liberal doctrine for the interpretation of contracts in which at least one party is an individual, rather than a legally sophisticated wealth-maximizing firm. A genuinely liberal law, we maintain, requires courts to favor the meaning of a voiceless party where the parties’ written agreement is not co-authored; to supplement its interpretive regime with autonomy-enhancing (thus relationally just) defaults; and – subject to certain exceptions – to consider all helpful evidence necessary to follow the actual choices people make.
Dagan, Hanoch and Gergen, Mark P, Autonomy, Implication, and Interpretation (August 12, 2024).
Leave a Reply