Pluralism in Contract Law

Contract theory faces a fundamental debate about contract formation's foundation: Is it rooted in subjective party intent and promises, reasonable inferences from conduct, or economic efficiency? Most contract theories respond to these questions through monism, seeking a single determinative value that governs all contractual rights and duties. Preference monism elevates one supreme value—such as liberty or efficiency—above all others in contract interpretation. Trakman argues that pluralist theories offer a superior framework for understanding contract formation by acknowledging a plurality of incommensurable values. Unlike monist approaches, pluralism does not endorse a single superordinate value but recognizes that contracting parties balance competing values like liberty, equality, and efficiency depending on contractual context. Courts apply pluralism through practical reason, identifying and ranking competing preferences to reach prudential decisions about contract formation. Trakman demonstrates this approach through multiple contexts: judges employ political pluralism when synthesizing competing governmental policies in contractual disputes, cultural pluralism when analyzing emerging attitudes toward contractual duties, and moral pluralism when establishing boundaries between market suppliers and repeat customers. This pluralist methodology allows courts to ground contract interpretation in multiple values while achieving contextually appropriate outcomes without imposing rigid doctrinal hierarchies.

Topics: Contracts · Legal Theory

Keywords: contract formation · monism · pluralism · contract interpretation · liberty · efficiency · practical reason · contractual context