Abstract
This analysis proceeds in six steps. In Part I, this Article sets the stage by describing the problem: while contracting behavior is increasingly complex, contract law and theory remain stubbornly uni-faceted. That is, while contracting and contractors are ever more modern, contract law and theory are ever more traditional. The greater the divide, the less useful contract theory is to contract law, and the less useful contract law is to contractors. This trend does not bode well for the future of contract law or theory. The question is how much of a crisis contract law will have to endure before the law evolves to keep up. Then in Parts II and III, I move to research not widely discussed in contract law literature showing that contractors can, and often do, pursue more than economic gain in a transaction. There are two different bodies of this research. First, I show in Part II that under certain conditions, contractors in business-to-business transactions hold shared expectations that each will adopt certain relational contracting behaviors, such as flexibility and reciprocity, over the course of their contracting relationship. These shared expectations become the expectation of the contracting unit—of both parties. This Article names this expectation mutualism, and explains a little bit of why it is that business economists, but not legal economists, have integrated relational contract norms into their economic modeling. Part III discusses the second body of relevant research, which is being done by behavioral and experimental economists. This work demonstrates that individual contracting actors also respond to different motives while contracting, which I call dualism. In this Part, I explain that this research not only confirms that individual economic actors are motivated by goals beyond efficiency, but it shows that contractors make predictable choices based on these motivations. Part IV illustrates more precisely why the mutualism and dualism of modern relational contract behaviors have Aristotelian underpinnings. At its core, it has to do with reciprocity: the reciprocity that is integral to relational contracting behaviors is also a fundamental characteristic of Aristotelian just exchange. Once these pieces are in place, a coherent contracting picture emerges. It is one that makes total sense once we transcend the normative boxes of existing legal theory. Finally, Part V takes up the question of what modern contract law analysis might look like if courts interpreted contract law as facilitating an exchange that meets the requirement of Aristotelian commutative justice of each benefits, but neither at the expense of the other. To flesh this out, I offer an example of a paradigmatic problem in contract law, the mandatory arbitration term-in-a-box. I analyze that problem from the perspective of an Aristotelian conceptual analysis of the contract law issues that the problem presents, drawing on a new classic of contract law, Hill v. Gateway 2000, and comparing it to a very recent decision from the Ninth Circuit.
Recommended Citation
Chapin F. Cimino, Doing Deals with Aristotle—Today, 41 SEATTLE U. L. REV. 209 (2017).
