Not by contract alone: The contractarian theory of the corporation and the paradox of implied terms

Gibbs-Kneller, David, 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 (EBOR). ISSN 1566-7529

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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
Related URLs:
Depositing User: LivePure Connector
Date Deposited: 28 Jan 2021 00:58
Last Modified: 11 May 2022 00:33
URI: https://ueaeprints.uea.ac.uk/id/eprint/78300
DOI: 10.1007/s40804-022-00241-7

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