Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.
Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of "projecting exchange into the future," which he calls "contract." Macneil develops an elaborate set of "norms" that must be adhered to if contractual exchange is to exist and flourish. Macneil sees "contract-in-law"--that is, contracts enforceable by a legal system--as an infinitesimally small fraction of the total web of contracts in the modem world, including marriage, bureaucracy, and the State. His project is to use what all contractual exchanges have in common to better understand contracts enforceable by a legal system. By so doing he has shown that such legally enforceable contracts themselves exist on a continuum that ranges from fully specified contracts in which all obligations are unambiguously expressed at the time of formation, which he calls "discrete" and "presentiated" contracts, to contracts that govern relationships that exist and evolve over long periods of time, which he terms "intertwined" contracts.
78 Va. L. Rev. 1175-1206 (1992)
Scholarly Commons Citation
Barnett, Randy E., "Conflicting Visions: A Critique of Ian Macneil’s Relational Theory of Contract" (1992). Georgetown Law Faculty Publications and Other Works. Paper 1254.