The Ambitions of Contract as Promise Thirty Years On ... - UCL

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Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission defaults. 59 Their theory depends on the will of the parties in that they provide parties with a choice of interpretive strategy; under their system, if you don’t want a formalist contract, don’t have one. 60 Or, you can have as much of one as you want. In contrast, the opposite of formalism or textualism—let’s call it purposivism 61 —leaves the parties no such choice of interpretivist strategies. In short, if you don’t want a formalist contract, don’t have one. Or have as much of one as you want. For Schwartz & Scott, the only role that a predilection for efficiency plays is to stipulate formalism as a default. But once you see the choice between purposivism and formalism as a choice, one or the other has to be the default when the parties don’t choose, and Schwartz and Scott make a pretty good argument that, at least between merchants, formalism is what most would choose—it is a majoritarian default rule. 62 But there is another problem of an infinite regress, one we have encountered in respect to remedies, but in the problem of interpretation it goes deeper: what if one party insists that from the outset—ex ante—he had rejected formalism? How is that dispute to be adjudicated? (There is an analogous crux 59 See Schwartz & Scott, Redux, supra note 50, at 946–47. 60 Id. at 947. 61 This is a bit of naughtiness on my part. I mean to draw an analogy between textualists in statutory interpretation and their counterparties who are called purposivists. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 3–5 (2001). 62 See Schwartz & Scott, Contract Theory, supra note 50, at 568–69. 30
Ambitions of Contract As Promise 24 August 2012 discussion draft: do not quote or reproduce without permission in respect to arbitration agreements, and whether the agreement to submit to arbitration is subject to arbitration.) After all, my argument depends on the premise that there is agreement—at least by default—to this higher-order rule about agreement. I am quite clear that this dispute must be adjudicated by the state on extrinsic grounds of political morality. How could it be otherwise? To take from Wittgenstein in another context, at some point we hit bedrock and our spade is turned. 63 At some point agreement between the parties, based only on the limited set of interactions leading up to the contract, runs out. Or perhaps this is analogous to Weber’s definition of the state as having the monopoly of coercive force. But how, then, is that dispute (over which style of interpretation to be used) to be adjudicated? It is standard doctrine that the parol evidence rule, the four-corners rule and the like have no application to certain claims of fraud: for instance imagine a purported obligee on a written instrument who claims that he was tricked into thinking that he was just signing his autograph. The law might take the line that the signer did at least voluntarily sign his name and that signing your name is an act so fraught with potential consequences that if you voluntarily do that, you must take on special burdens—either of proof if the 63 LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 217, at 91 e (G.E.M. Anscombe trans., Wiley Blackwell, 4th ed. 2009) (1953). 31
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The Ambitions of Contract as Promise Thirty Years On ... - UCL

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