TY - CHAP
T1 - Reinterpreting the status-contract divide
T2 - The case of fiduciaries
AU - Dagan, Hanoch
AU - Scott, Elizabeth S.
N1 - Publisher Copyright:
© Paul B. Miller and Andrew S. Gold 2016.
PY - 2017/1/1
Y1 - 2017/1/1
N2 - The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predicament is understandable given that the innate, comprehensive, and inalienable status as well as the wholly open-ended contract anticipated by commentators are corner-rather than core-alternatives in a liberal polity. Hence, to clarify these normative debates we introduce two further, intermediate conceptions: office and contract type. Like the innate status, an office, such as our example of parenthood, is often subject to immutable legal rules and its core obligations not fully assignable. By contrast, a contract type, such as our example of financial fiduciaries law, is mostly subject to default rules that can be rejected or adjusted by the parties and even core tasks can be delegated. These differences derive from and properly reflect the divergent relationships to which offices and contract types apply-identitarian or instrumental-as well from the salience of the asymmetrical vulnerability of one of the parties.
AB - The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predicament is understandable given that the innate, comprehensive, and inalienable status as well as the wholly open-ended contract anticipated by commentators are corner-rather than core-alternatives in a liberal polity. Hence, to clarify these normative debates we introduce two further, intermediate conceptions: office and contract type. Like the innate status, an office, such as our example of parenthood, is often subject to immutable legal rules and its core obligations not fully assignable. By contrast, a contract type, such as our example of financial fiduciaries law, is mostly subject to default rules that can be rejected or adjusted by the parties and even core tasks can be delegated. These differences derive from and properly reflect the divergent relationships to which offices and contract types apply-identitarian or instrumental-as well from the salience of the asymmetrical vulnerability of one of the parties.
KW - Financial fiduciaries
KW - Henry maine
KW - Offices and contract types
KW - Parents and children
KW - Status and contract
UR - http://www.scopus.com/inward/record.url?scp=85026217386&partnerID=8YFLogxK
U2 - 10.1093/acprof:oso/9780198779193.003.0003
DO - 10.1093/acprof:oso/9780198779193.003.0003
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AN - SCOPUS:85026217386
SP - 51
EP - 70
BT - Contract, Status, and Fiduciary Law
PB - Oxford University Press
ER -