Document Type

Article

Publication Date

Fall 2010

Abstract

The annual Business Law Symposium of the Wake Forest Law Review has a distinguished legacy of noteworthy programs that shed light on seminal issues affecting contemporary business in the United States. This edition builds on that tradition of excellence with a focus on the ubiquitous phenomenon of contracts and bargaining behavior. Contract law appears as a set of policies and rules that provide order for those who transact bargains. Indeed, contract law and the rules that it engenders seemingly facilitate an efficient system of transactional conduct that, on its face, appears objective.

Part II of this introductory Article briefly examines the most popular, unitary theories of law. It questions any one theory's explanatory power over the breadth of contract issues and types of contracts. It supports the idea that each theory of contract can be used to explain certain contract rules, but not contract law as a whole. This Symposium buttresses this idea with the collective view that contract law can best be described and guided through a context-driven inquiry. A contextual theory of contract law recognizes the need for flexible rules for different contractual contexts and the elastic application of those rules across contexts. A contextual theory of contract law also recognizes a number of phenomena. First, contract interpretation, through the lens of context, should be used to regulate influences that question the purity of the freedom of contract upon which most agreements are based. Second, the construct of contract has been creatively applied to areas that are not immediately envisioned within the body of contract law.

Part III then examines the different uses of context that illustrate the relationship between contract law and society. It notes that “contract in context,” for the purposes of the Symposium, is broadly defined. This Part provides a taxonomy of contract law in context that includes internal and external perspectives. Part III recognizes that societal context frames contract law, but also observes that contract law can frame the private ordering of society. This two-way flow of context, between the greater socioeconomic-cultural sphere and contract as context, analyzes the relationship of contract types and the contextual interpretation of contracts. It concludes by examining the relationship of context to paternalism and consent. Part IV then notes the role of power and identity in the formation and interpretation of contracts, and contract law's shortcomings in recognizing such influences in the search for contractual justice. Finally, Part V introduces the works presented at the Symposium.

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