Tools
Tools
Gibbs-Kneller, David 
ORCID: https://orcid.org/0000-0002-6596-8536, Gindis, David and Whayman, Derek
(2022)
Not by contract alone: The contractarian theory of the corporation and the paradox of implied terms.
European Business Organization Law Review, 23 (3).
pp. 573-601.
ISSN 1566-7529
Preview |
PDF (GibbsKneller_etal_2022_EBOLR)
- Published Version
Available under License Creative Commons Attribution. Download (795kB) | Preview |
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.
| Item Type: | Article |
|---|---|
| Uncontrolled Keywords: | corporate law,contract law,implied terms,contractarian,corporation,implied terms,contractarianism,contract law,law,political science and international relations,business and international management ,/dk/atira/pure/subjectarea/asjc/3300/3308 |
| Faculty \ School: | Faculty of Social Sciences > School of Law |
| UEA Research Groups: | Faculty of Social Sciences > Research Groups > International Law |
| Related URLs: | |
| Depositing User: | LivePure Connector |
| Date Deposited: | 28 Jan 2021 00:58 |
| Last Modified: | 27 Sep 2024 23:55 |
| URI: | https://ueaeprints.uea.ac.uk/id/eprint/78300 |
| DOI: | 10.1007/s40804-022-00241-7 |
Downloads
Downloads per month over past year
Actions (login required)
 |
View Item |