Reconciling Contract Law's Objective and Subjective Standards

Abstract

Although the common law of contract is often said to favour ‘objectivity’, it sometimes seems to adopt a ‘subjective’ standard. The apparent tendency to switch between rival standards troubles many contract scholars. In response, some seek to vindicate objectivity alone as the one true standard. Others propose a single abstract theoretical rationale that can allegedly encompass both standards. I suggest a different approach. I try to develop a fuller appreciation of what the objective and subjective standards are and what they seek to achieve. I conclude that each is a substantive ethical ideal that specifies certain minimal requirements of decency in business dealing. On this view, the two standards are not rivals but complementary. Nor need we invoke any more abstract theoretical rationale to understand them.