Intimate Relationships, Relational Contract Theory, and the Reach of Contract

Author: Wightman J.

Source: Feminist Legal Studies, Volume 8, Number 1, 2000 , pp. 93-131(39)

Publisher: Springer

Abstract:

This article explores the role of contract law in intimate relationships, focussing on tacit or only partially express agreements rather than express prenuptial or cohabitation contracts. It welcomes the embrace of relational contract theory by feminist and gay and lesbian commentators, but argues that key differences between commercial and intimate relationships need further analysis if the potential of relational theory in cases of informal agreement is to be realised. The first difference is that, while commercial contracts can draw on the context of a contracting community as a source of norms to fill gaps in agreement, there is no equivalent source of norms for intimate relationships. The second difference is that, although relational theory entails the attenuation of self interest in commercial contracts, in intimate relationships the sense in which self interest is attenuated is quite different, with the result that concepts such as cooperation and altruism have different meanings. The result of these differences is that, in some intimate relationships, there will be informal understandings falling short of bargain, which will be unenforceable – under both orthodox contract law and more relational interpretations of it. It is argued that many such informal agreements are distinguishable from most gratuitous promises because they are characterised by a degree of reciprocity between the parties. The possibility of the law of contract recognising such non bargain agreements based on reciprocity is explored, and it is argued that the enforcement of such agreements represents a less distorting legal response than that available through the use of promissory estoppel.

Keywords: altruism; bargain; cooperation; implied contract; intimate relationships; relational contract theory; reliance

Language: English

Document Type: Regular paper

Affiliations: 1: Kent Law School, University of Kent, Canterbury, Kent CT2 7NS E-mail: J.A.Wightman@ukc.ac.uk

Publication date: 2000-01-01

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• In this Subject: Families & Communities ,  Gender Studies ,  Law
• By this author: Wightman J.

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