Contracts and Friendships
2009; The MIT Press; Volume: 59; Issue: 3 Linguagem: Inglês
ISSN
0094-4076
Autores Tópico(s)Legal principles and applications
ResumoThis Article aims to give the relational theory of contract new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, this Article offers a provocative window into friendship’s contractual structure—and into relational contracts’ approximation of friendships. The analogy developed here is poised to replace the “relational contract as marriage” model prevalent among relationalists. This new model is more honest to relational contract theory and to marriage— and helps relational contract theory produce some new insights, support old ones, and revise some of its normative agenda. INTRODUCTION 651 I. RELATIONAL CONTRACT THEORY: A SYMPATHETIC RECONSTRUCTION 653 A. The Empirical Claim 654 B. The Analytic Claim for a Paradigm Shift in Contract Theory .... 655 C. The Normative Claim About Contract Law 661 II. FRIENDSHIP AS RELATIONAL CONTRACT 673 A. Friendship’s Similarity to Relational Contracts 674 B. Some Cognitive Dissonance Managed 680 1. Value 680 2. Exchange 684 3. Unity of Interests 687 * Visiting Associate Professor of Law, University of California—Berkeley Law School (Spring 2010); Associate Professor of Law, University of California—Hastings College of the Law; Scholar-in-Residence, Columbia University School of Law (Spring 2009). Thanks to the 1066 Foundation and the Roger Traynor Scholarly Publication Award for financial support; to Verity Winship, Steve Vladeck, Bob Scott, Alice Ristroph, Eric Posner, Michael Pratt, Michael O’Hear, Stewart Macaulay, Dan Markel, Julian Ku, Katy Kuh, Adam Kolber, Paul Ingram, Adil Haque, Jay Feinman, Ira Ellman, Bill Dodge, Reza Dibadj, I. Bennett Capers, Dave Campbell, Mike Cahill, and Curtis Bridgeman for comments on earlier drafts; to the participants of a workshop at Hofstra Law School (“Prawfsfest!”) for feedback; to the participants of the Bay Area Forum for Law & Ethics (BAFFLE) at Berkeley; and to Doug Ecks for wonderful research assistance. LEIB GALLEYSFINAL 5/17/2010 12:36 PM 650 EMORY LAW JOURNAL [Vol. 59 4. Natural Persons, Friendship, and Organizations 689 III. RELATIONAL CONTRACT AS FRIENDSHIP 690 A. De-centering Marriage 690 B. Exit Costs 692 C. Exclusivity 693 D. Common Ownership 694 E. Default Rules 694 F. Formalities 695 G. Enforceability of Intra-relational Promises 697 H. A Caveat or Three 698 IV. FRIENDSHIP, LEGALITY, FORMALITY, AND SOCIAL NORMS 702 A. The Legal Enforceability of Friendship? 702 B. Revisiting Relational Contract Law 713 C. The Debasement/Crowding Thesis: Social Norms and Legal Norms Playing Nicely Together 717 D The Under-compensatory Nature of Contractual Remedies ...... 722 CONCLUSION 725 LEIB GALLEYSFINAL 5/17/2010 12:36 PM 2010] CONTRACTS AND FRIENDSHIPS 651
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