Developing Contract Theory

Efi Zemach and Omri Ben-Zvi, both at the University of Jerusalem Faculty of Law, have published The Aesthetics of Contract Theory. Here is the abstract.

This Article offers a novel descriptive theory of contract scholarship that focuses on the aesthetics of various contract theories. Following Pierre Schlag, we explore aesthetics as pre-theoretical commitments that determine the form (but not the substance) of legal discourse. The Article explores four leading contract theories – promissory, reliance, economic and pluralistic conceptions of contract – and illustrates the manner each theories' substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. The Article sheds new light on various contract theories and shows how the aesthetic point of view can better explain their specific strengths and weaknesses.

This inquiry also clarifies why decades of insightful theoretical work have failed to establish the supremacy of any contract theory. The Article's main thesis in this respect is that the continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct – contract theories, which rely on different aesthetics, cannot produce conclusive evidence of their superiority. Our explanation also predicts that contract scholarship is not likely to produce a widely accepted theory any time soon.

Download the paper from SSRN at the link.