This Essay, prepared for a volume on John Gardner’s private law theory, studies Gardner’s reflections on contract and contractualization in order to evaluate the transfer theory of contract on which he implicitly relied. An additional much more speculative takeaway beyond contract theory of this inquiry suggests that whereas Gardner may be correct that reading our modern commitment to autonomy into private law is adventurous descriptively, he is too quick to refer to this commitment as ‘ephemeral’ insofar as we move from description to defense.
Three indicia support the proposition that Gardner was a transfer theorist: (1) Gardner repeatedly refers to contract as the ‘This for That’ way, and to contract formation as an assignment; (2) He insists that contract is subordinate, as a matter of both logic and justification to tort, and that contractual rights are security rights, aiming at vindicating the significance of keeping one’s life ‘on its existing track’; and (3) He implies that the ‘contract part’ of the law is necessarily thin and cannot possibly include any special feature of the contractualized relationships or of the pertinent parties.
Contract’s thinness underlies Gardner’s harsh critique of contractualisation. The This for That view of contract implies that contractualisation necessarily requires regarding the parties as ‘merely contractually related humans’, which in turn suggests that the contractualization of special relationships – and particularly the idea of employment contracts – necessarily entail alienation and subordination …
Dagan, Hanoch, The Liberal Promise of Contract (April 7, 2021). Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Haris Psarras and Sandy Steel eds, forthcoming 2022).