What is a Contract?
Tal Kastner
What Is a Contract?: The Absent Author of the Written Contract and the Function of Certain Conventions of Drafting and Construction
Tal Kastner
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What is a Contract?
Tal Kastner
Introduction
The role of the author in defining the nature of a text has been considered extensively in literary and philosophical criticism. For Michel Foucault, a thinker particularly attuned to the challenges of classification, the presence or absence of an author is a significant characterizing feature of a discourse. In his well-known essay, “What Is an Author?,” Foucault explains that the author functions to limit the possibilities of meaning of a text. Despite the importance of delimiting the meaning of language in the law, and in the texts of contracts, in particular, as ostensible manifestations of consensus, Foucault specifically identifies contracts as authorless texts. Reflecting written contracts’ particular demand for and difficulty of establishing an “author function,” or a limiting principle, a number of contractual provisions have emerged in the absence of an author. By examining the contemporary form of the written contract in terms of boilerplate and other drafting conventions that often inscribe fictions of stability or limitation of meaning into the contractual text, one may gain an understanding of the written contract as a genre in which the author function or an analogous limiting principle manifests itself without reference to the individual. Such an analysis sheds light not only on the nature and function of the written contract—which, when viewed as a genre, reinforces on the level of the text the claim of relational contract theorists that the understanding of contracts demands the recognition of a broader context of relationships—but on the nature of the discourse of the law more generally and the ways in which it defines itself in contrast to that of literature.
Foucault’s Author
In “What Is an Author?,” Michel Foucault interrogates the role played by the author in our understanding of writing, identifying the function of the author as a defining characteristic of the discourse of literature. Foucault suggests that the author is a fictional construct that serves as a source of interpretive authority. As a manifestation of our impulse to contain the proliferation of meaning, the author is a function of our reading of the text, but one that allows us to restrict the possibilities of interpretation. Tracing the source of the construction of the author as a limiting function in literary criticism, Foucault points to Christian tradition, and specifically to Saint Jerome, who, among other things, defines the author as a constant, static and discrete entity, which thereby neutralizes contradictions between texts.[1] Thus the author grows out of an impulse to construct an interpretive lens that would result in a coherent, stable text. Emerging from this tradition, Foucault suggests, our concept of the author serves to mark the boundaries of the possibilities of meaning: “[T]he author is not an indefinite source of significations that fill a work; the author does not precede the works; he is a certain functional principle by which, in our culture, one limits, excludes and chooses; in short, by which one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of fiction.”[2] The stability of such fiction—that of the author, and that of the author as limiting principle—is called into question as Foucault notes that a plurality of self becomes manifest in all discourses endowed with the author function. Recognizing that the author function does not directly reference reality, he explains that the author function does not refer to a “real individual, since it can give rise simultaneously to several selves, to several subjects—positions that can be occupied by different classes of individuals.”[3] Thus, even if we view the author as a limiting principle, according to Foucault, this function is a fiction, since the author involves, in and of itself, a proliferation of meaning; the author remains potentially subject to a range of possibilities of interpretation, as does the text.
Central to Foucault’s analysis is the role the author function plays in characterizing various discourses. “In a civilization like our own,” Foucault explains, “there are a certain number of discourses endowed with the ‘author function’ while others are deprived of it.”[4] In addition, “[t]he author function does not affect all discourses in a universal and constant way.”[5] Thus Foucault argues that the presence of an author, as manifested by the author’s name, “serves to characterize a certain mode of being of discourse.”[6] By way of illustrating the impact of the named author on our conception of a text and the discourse in which it operates, Foucault presents a number of examples of authorless forms, which highlight the centrality of the author function in defining a discourse. In addition to the “private letter,” and the “anonymous text posted on a wall,” Foucault offers the contract, which “may well have a guarantor – it does not have an author.”[7] Lacking the name of its author, which, in the case of a literary work, “seems always to be present, marking off the edges of the text, revealing, or at least characterizing, its mode of being,”[8] the contract, in Foucault’s view, operates differently than authored texts and does not enjoy the function of the author as an authoritative interpretive principle.[9]
Drawing from Foucault’s insight, one may attempt to understand the mode of existence of a discourse, or the function of a genre of writing,[10] by determining whether an “author function” or analogous mechanism of limitation exists. In other words, one may identify forms of fictions of limitation in searching for a generic source of interpretive authority. In the discourse of American law, the question that Foucault poses with respect to the author remains a critical one: “How can one reduce the great peril, the great danger with which fiction threatens our world?”[11] While the possibility of a limiting function or an interpretive lens designed to reveal a coherent and stable text (and, hence, system) has been much debated in the field of law,[12] legal discourse continues to engage, at least at times, in the fiction of an interpretive process that reveals the inherent static meaning in a text and the law.[13] The law generally seeks systems of interpretation that will identify the correct, or best, meaning of a text, and, as such, is continually engaged in the limitation of meaning, or the development of principles analogous to the author function in literary discourse.[14] The text of the contract, which itself functions within the parameters of the law, is ostensibly the product of the parties’ efforts to solidify—and thereby enforce—the substance of their agreement. As instruments of agreement intended to govern the behavior of the parties, written contracts represent attempts to fix consensual meaning in a text, and consequently enlist the attendant authority of the law. Thus, following from Foucault’s essay, an understanding of the limiting principles of interpretation or the identification of some type of author function, if any, would shed light on the function of the discourse of the written contract as a whole.
In searching for an author of a contract, however, one must acknowledge that in literal terms a contract may have one or a number of drafters, but the identities of the drafters do not function to set the boundaries of the text, unlike the name of the author of a literary text. Most obviously, the written language of a contract is not considered the product of a single idiosyncratic vision or inspiration, but is viewed as resulting from at least two parties’ participation.[15] In Foucault’s terms, we cannot expect the language of the contract to reveal an author represented in its human individuality by a single proper name.[16] Consistent with Foucault’s vision of a discourse defined by the presence or absence of the author is the fact that the “writers” of contracts are typically referred to as “drafters.” The term “drafting” reflects the belief that the construction of the language of a contract is a mechanical exercise, which presumably enjoys a different status from that of writing. In addition, the text of a contract is typically constructed, both by its drafters and the courts, through the additional filters of the forms, principles, language and practitioners of the law. While contracts draw their legitimacy and authority from the notion of a consensual meeting of the minds, the prevalence of boilerplate and form contracts means that the terms of the written contract are often predetermined.[17] Thus, as Foucault suggests, the author as a fiction of a stable individual identity is thereby absented, and as a result the function of stability may be assigned to a different type of authority.
What then, if anything, takes the place or serves a function related to that of the author in the discourse of written contracts? If there is no comparable author function in the genre of the written contract, what does that indicate about the nature of this form of writing? As noted above, the law, generally, and written contracts, in particular, seek to function in a manner consistent with the function of the author; contracts, as documents that expect to be encountered in a different context,[18] rely on fictions or constructs to, at least on the face of things, narrow the possibilities of meaning. Thus it is reasonable to expect that something related to the “author function” may be identified in a contemporary written contract through an examination of its text and the applicable principles of interpretation applied by the courts and commentators. By identifying the ways in which fictions of stability or limitation of meaning are inscribed into the text of a written contract, and their function in the text, we may not only shed light on the power and appeal of the particular form of fiction represented in certain discourses by the author,[19] but, as suggested by Foucault, gain a better understanding of the function of the particular discourse in which the limiting principle we identify operates.
The Contract, the Agreement and the Writing
In attempting to locate the limiting principle manifested in and by a contemporary contractual text, one might first consider the nature of the contract as reflected in its current definition as well as its roots in William Blackstone’s Commentaries on the Laws of England. An understanding of the development of our conception of the “work,” in this case, the idea of the contract, in connection with a search for the “author,” or other limiting interpretive principle, is consistent with Foucault’s analysis; Foucault identifies the definition of the work itself as inherent in the critical approach of “analys[ing] the work through its structure.”[20] In addition, such an examination reveals the way in which the ambiguous relationship of writing to the concepts of agreement and contract is built into our current notion of the written language of the contract. The difficulty the law encounters in defining the relationship between writing and the agreement, as well as the role of writing in contract interpretation generally, may be traced to Blackstone’s treatment of the contract. In our current system of law, the idea of an agreement as a fixed, determined and coherent meaning beyond, but represented by, the text is often enlisted to suggest the potential stability of the language of the document, as well as its legitimacy as a contract. At the same time, an examination of the courts’ application of accepted principles of construction reveals the problem of locating the agreement in or behind the text, since the limiting principle invoked by the courts may be drawn from within the text of the document or some broader text of convention, law, or circumstance. As a result, the function of the writing of the contract remains unclear as it is treated as both a performative and constative statement,[21] at times constituting the agreement and at others representing it. Thus, as courts continue to interpret contracts with an eye to the agreement represented by the text but existing beyond it, the desire for stability and coherence in the discourse of the law manifests itself in fictions of limitation inscribed within the text in the form of “boilerplate.”[22] Boilerplate, a quintessentially unauthored and accessible form, signals both objectivity and anonymity, or non-idiosyncrasy, legitimizing elements of authoritative legal texts. Like any language of limitation inscribed within the text, however, such provisions remain subject to the possibilities of interpretation, while simultaneously affecting the nature of the document. The presence of these types of provisions may be viewed as the written contract’s generic manifestation of the struggle to locate interpretive authority within the written document of the parties and thus create a semblance of interpretive stability and legitimacy.
The Notion of Contract: Blackstone’s Commentaries and the Role of Writing
An examination of the conception of contract reflected in Blackstone’s Commentaries may bring into relief the ambiguity inherent in the current notion of contract. In analyzing the implications of the Commentaries’ structure, Duncan Kennedy opines that the treatise “is the single most important source on English legal thinking in the 18th century, and it has had as much (or more) influence on American legal thought as it has had on British.”[23] In light of the continuing resonance of Blackstone’s language in our current definition of contract, it is not surprising that an examination of Blackstone’s treatment of contract reveals the seeds of certain tensions present in more recent principles of contract drafting and interpretation.
Blackstone defines a contract as “an agreement upon sufficient consideration, to do or not to do a particular thing.”[24] While the notion of agreement is at the heart of Blackstone’s proffered definition of contract, it is itself explained in abstract terms. “The agreement” comprises the first of the three points that Blackstone asserts must “be contemplated in all contracts.”[25] An agreement, Blackstone explains, is “a mutual bargain or convention,” which therefore requires that there “at least be two contracting parties of sufficient ability to make a contract.”[26] Blackstone does not elaborate on the requirement of the “ability to make a contract” other than to consider it in terms of possession of property and related means of transfer; he does not shed light on the constitution or manifestation of the agreement (or of the bargain or convention).[27] In addition, by suggesting that an agreement may be constituted by a convention, as well as a bargain, Blackstone seems to allow for the inclusion of both express and implied contracts, which, in the case of the latter, “are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform.”[28] In this manner, the notion of agreement is distanced from the participation or actions of the contracting parties, and as such, its relationship to the writing of a contract becomes difficult to determine.
Kennedy’s analysis of the structure of the Commentaries exposes the rationalization and naturalization of certain tensions and contradictions in the law.[29] Borrowing loosely from Kennedy’s methodology of examining the function of classification in the Commentaries, one may examine the way in which Blackstone categorizes, or fails to categorize, contracts on the basis of writing and, as such, sows the seeds of uncertainty concerning the relationship between the agreement and its writing. Blackstone’s enterprise is one of organization, but the Commentaries does not use the notion of writing as an overarching basis of classification of agreement, distinct from that engaged in verbally. Instead, as Kennedy points out, the distinction between the express and implied contract dominates Blackstone’s conception of the contract.[30]
While writing does not in itself serve as a general basis for classification in Blackstone’s conception of contract, it is inherently related to the function of particular types of contracts. Blackstone’s treatment of the four “general species of contracts,” —“sale or exchange,” “bailment,” “hiring and borrowing” and “debt”[31]—fails to clarify the relationship between the writing of the contract and the agreement that the contract represents or constitutes. For example, in describing debt, he addresses the functions of certain types of written contracts, such as bills of exchange and promissory notes.[32] In addition, “debts by specialty, or special contract” are, according to Blackstone, “such whereby a sum of money becomes, or is acknowledged to be, due by deed or instrument under seal.”[33] As such, this form of debt is characterized by writing, but Blackstone’s language preserves the possibility of either conception of the writing—the deed or instrument may constitute the agreement, as the money “becomes” due, or the writing may represent it, as the money is “acknowledged to be” due. Although the performative nature of certain contracts such as the promissory note is implicit in their operations as instruments, Blackstone’s discussion also reflects the notion of the written document serving as a constative statement. Specifically, Blackstone touches on the probative value of writing in the context of the principle of nude pacts in his discussion of the element of consideration. According to this principle, an agreement “to do or pay any thing on one side, without any compensation on the other, is totally void in law.”[34] This rule, Blackstone explains, “was principally established to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned” and may not hold in the event “such promise is authentically proved by written documents.”[35] By employing the notion of proof, Blackstone seems to suggest that the written documents presented would evidence an element of the contract, the promise, that exists external to the written documents.[36] At the same time, Blackstone’s conception of the contract remains ambiguous as the promise may itself be constituted by the document.[37] The structure and language of Blackstone’s treatment of contracts thereby reveal an ambiguous notion of contract, as an agreement existing independent of physical proofs, but evidenced by them, as well as an agreement constituted by such physical evidence, that is, the writing.
Current Definitions of Contract
The definition of contract in Black’s Law Dictionary reflects Blackstone’s impact on our current thinking. Black’s Law Dictionary provides the following as its initial definition of a contract: “An agreement between two or more persons which creates an obligation to do or not to do a particular thing.”[38] By adopting language similar to that of Blackstone, this definition preserves the uncertainty concerning the relationship between the writing of an agreement and the agreement, or contract, and the question of whether the agreement at the heart of the contract has an existence beyond that of its written form. The Dictionary also describes a contract as “[t]he writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation.”[39] The suggestion that the written form “contains the agreement of parties” while serving “as a proof of the obligation” suggests the performative and constative functions of the language, that the writing itself constitutes the agreement of the parties, while simultaneously representing it, and thus serving to document its independent existence, in a constative way.[40] The Dictionary’s definition of agreement similarly blurs the distinction between the writing as agreement and the notion of agreement independent of its documentation. Agreement is defined as a “concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, or certain past and or future facts or performances,” as well as a “manifestation of mutual assent” and “the act of two or more persons who unite in expressing a mutual and common purpose.”[41] While the definition suggests that the agreement is a “meeting of two or more minds” that exists independently of the written form of the contract, it also acknowledges the sense of the term as “[t]he writing or instrument which is evidence of an agreement.”[42]