This chapter presents and rejects three arguments against incorporating concerns of distributive justice into contract. First, private law theorists have worried that it is arbitrary to impose the burden of redistribution on a party to contract when the underlying injustice is systemic. The chapter shows that distributive concerns inform the content of interpersonal duties that traditionally underwrite private law. Second, disadvantaged parties consent to the terms of their agreements and we might worry that these terms exhaust obligations between the parties with respect to those transactions. That is, even if a disadvantaged party had any claims arising from distributive injustice, she waives them vis a vis particular individuals by agreeing to contract on particular terms. The chapter argues that consent to contract does not obviate the other party’s moral responsibility for losses resulting from exchange, though in the ordinary case it may justify the state allocating losses to the party who consented to bear them. The chapter also argues that, where the terms of agreement are ambiguous – i.e., where the terms to which parties have consented is unclear – we should avoid reading contracts in ways that compromise distributive justice. Finally, many scholars fret that any attempt to correct distributions through contract adjudication or even regulation of classes of contract is futile, or worse, counter-productive. The chapter suggests that these concerns are contingent and of more limited scope than we normally take them to be.
Bagchi, Aditi, Distributive Justice and Contract (September 10, 2013). Philosophical Foundations of Contract Law (Klass, Letsas, Saprai,eds.) Oxford University Press, 2014, Forthcoming.