The Liberal Promise of Contract

Chapter 18 studies Gardner’s reflections on contract and contractualization in order to evaluate the transfer theory of contract on which he implicitly relied. Gardner’s elaboration of the implications of transfer theory is convincing. But unlike Gardner, the chapter refuses to take transfer theory for granted. Transfer theory may nicely fit contracts that follow the model of an extended barter, but this is a particular and not particularly happy view of contract. Transfer theory is particular because it ill-fits a significant subset of contract law and the practice of contracting. Transfer theory is also not a particularly happy view of contract, and not only because its implementation would curtail law’s support of many human endeavors. Gardner’s critical insights are particularly significant here. The contrast to the alternative, autonomy-enhancing view of contract-referred to here as “liberal contract”-could not be sharper. Indeed, understanding contract as a joint plan, rather than transfer, and recognizing its reliance on reciprocal respect for self-determination, rather than for independence, radically transforms the role of “the contract part.” The implications of substituting the security-based view of contract with its autonomy-based counterpart suggest that while liberalism is indeed historically contingent, liberal values are indispensable for a just private law.