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        Not by Contract Alone: The Contractarian Theory of the Corporation and the Paradox of Implied Terms

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        Author
        Gibbs-Kneller, David
        Gindis, David
        Whayman, Derek
        Attention
        2299/25528
        Abstract
        Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts’ supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible.
        Publication date
        2022-03-08
        Published in
        European Business Organization Law Review
        Published version
        https://doi.org/10.1007/s40804-022-00241-7
        License
        http://creativecommons.org/licenses/by/4.0/
        Other links
        http://hdl.handle.net/2299/25528
        Relations
        Hertfordshire Business School
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