(Mis)Understanding Correlativity in Contractual Relations

Abstract

This article challenges the orthodox explanation of the normative connection between contracting parties: The promisee is regarded as having a superior position vis-à-vis the promisor, a position manifesting itself in the promisee's authority or control over the promisor's performance, and supported, in particular, by the promisee's supposed power, or at least some sort of ability falling short of a normative power, to “waive” the promisor's duty of performance. The article demonstrates that this explanation is rooted in a one-sided, and ultimately wrong, understanding of correlativity in contractual relations and suggests a better understanding, one truly capable of accounting for contractual bilaterality.