Abstract

According to some approaches to contract law, the criteria by which the existence and extent of contractual obligation is to be determined reside within the act of contracting itself. Such approaches are internalist and content-independent. Other approaches claim that contractual obligation arises only where the content of a contract is consistent with a principle of contractual obligation which stands independently of and prior to particular contracts. Such approaches are content-dependent and externalist. The principal theories of contract are either internalist and content-independent or externalist and content-dependent. ;This thesis is concerned to argue that externalist content-dependent theories of contract are implausible. It is argued that contract should be conceived of as a modus vivendi: The criteria for the determination of contractual obligation are to be specified by communities as a way of settling issues which they would settle by appeal to external content-dependent standards if they could, but which they settle by internal content-independent standards because that is the only option available to them. ;Once the status of contract as a modus vivendi is appreciated, we can see that many of the specific criticisms of internalist content-independent accounts of contract can be met. One such criticism claims that internalist content-independent accounts cannot recognise the importance of the externalist concerns which are at issue in contractual adjudication. But the conception of contract as a modus vivendi is able to recognise the significance of such concerns, while retaining its status as internalist and content-independent. An immediate consequence of this feature of the conception is that it at once disarms many of the critics of internalist accounts of contract and removes much of the motivation for their critique. ;A number of leading theories of contract are examined in light of the distinction between internalist content-independent and externalist content-dependent conceptions of contract and the idea of contract as a modus vivendi. These perspectives show those theories to be inadequate. Though many common criticisms of will theory are misplaced, the theory relies upon an account of contractual language which cannot be sustained. Randy Barnett's consent theory of contract has much in common with the account of contract defended in this study, but Barnett ends up relying too directly upon an underlying moral theory, so that this account is ultimately vulnerable to the same objection both he and his study run against externalist theories. Similarly Charles Fried's defence of the promise theory of contract relies directly upon a particular moral theory for which Fried does not argue. Patrick Atiyah's admissions theory of promise is externalist and content-dependent, but in order to meet objections to this theory based upon features of contract doctrine, Atiyah resorts to a number of arguments which in fact undercut his own position; they are arguments for an internalist content-independent account of contract. ;The study, then, is concerned to present an account of contract as a modus vivendi and to show how that account allows us to satisfy both our belief in the importance of externalist concerns in determinations of contractual obligation and our need to make such determinations given that we cannot do so by direct appeal to such externalist concerns