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

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.

Corporate strategy on climate risk in the courtroom: Not worth powder in shot

“…If directors were legally required to act in a way that is best for the environment, the company's wealth will be subordinated to environmental law goals, thus failing to approximate the efficient contract. 95 Shareholders, for example, may pay less for the company's shares due to the increased risk exposure from the subordination of their interests. 96 Now consider this friction with the way directors are remunerated.…”