伪契约与共享意义分析

IF 3.5 2区 社会学 Q1 LAW
R. Kar, M. Radin
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引用次数: 13

摘要

在过去的几十年里,法院和法律学者一直在纠结是否或何时将样板文本视为合同。最近试图将所有样板文本纳入“合同”,试图结束这场斗争,但已经将合同法从传统的重点转移到执行各方的实际协议和共同谅解上。这就需要对合同法进行一系列临时的“修正”,让人想起中世纪使用“周转”来试图将行星运动的地心理论与对非地心宇宙的顽固观测相一致。这种转变改变了合同法核心概念的含义。我们认为这种转变是一种未经诊断的范式失误,导致“合同”的广义理论仅仅是一种风险假设,允许在没有达成核心合同法原则所要求的实际协议的情况下单方面设定私人义务。有些人现在把这种新的义务称为“合同”。但它是伪合同,类似于没有满足其必要的有效条件的合同。最近进入伪契约的范式引发了语言、事实、概念、实践、规范和理论问题的复杂混合。在“契约”的外衣下,伪契约的问题在很大程度上一直隐藏着。在这篇文章中,我们揭露了这些问题,并开发了一种更细致、更连贯的分析方法——共有含义分析——法院和其他法律分析师可以用它来确定任何特定的样板文本何时对合同有实际条款的贡献。由于在讨论样板文本如何(或不)有助于契约意义的讨论中,有关语言的事实没有得到足够的关注,我们通过从语言哲学家保罗·格里斯那里对意义对社会合作的依赖性提出了一些开创性的见解来启动我们的分析。根据他对语言的见解,我们对合同的共同含义(或“双方的共同含义”)进行了当代定义,即最符合双方合作使用语言订立合同的前提的含义。然后,我们提供了一个简单的概念测试,法院可以用来辨别这种共同的含义,区分样板文本的合同和非合同使用,并防止合同滑向伪合同。我们特别注意诊断样板文本的欺骗性或误导性使用。通过使用从点击包装消费者合同到复杂各方之间的高端样板合同等广泛的例子,我们展示了共享含义分析如何普遍应用于多种合同。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Pseudo-Contract and Shared Meaning Analysis
Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity. The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis — shared meaning analysis — that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract. Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.
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来源期刊
CiteScore
2.90
自引率
11.80%
发文量
1
期刊介绍: The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.
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