Monday, March 5, 2012
Aditi Bagchi (University of Pennsylvania Law School) has recently posted on SSRN her new paper: Parallel Contract.
Here is the Abstract:
This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic model; in particular, the obligations of the repeat contractor should be understood by reference to its most recent practices and communications with any of the other parties in a given setting.
The second part of this paper excavates the deep reasons why some theories of contract resist distinct models of contract. I propose a typology of contract theory that roughly tracks John Rawls’ distinctions between pure, perfect and imperfect theories of procedural justice. Pure and perfect theories of contract will tend to justify the rules by which we identify and enforce contractual obligation based on general features of contract; hence those rules will be deemed appropriate across contractual settings. Theories of contract which regard contract as an imperfect means by which parties manage exchange are more likely to endorse specialized rules, such as those appropriate to parallel contract.
The piece suggests an alternative to the implied contract paradigm in the interpretation of employment contracts. It is a contract theory piece, but Aditi sees employment contacts as the primary context of application.
I think Aditi is correct that her paper will have special relevance for the world of employment contracts and the world of employment-at-will. Check it out!