 Tort law concerns obligations among strangers. But contract law concerns obligations among parties who have a special relationship to each other, including the relationship constructed by the contract itself. Raz (1977: 228) writing about promises, has suggested that bare reasons for keeping promises “can only be justified if the creation of [the] special relationships between people [that even bare promises involve] is held to be valuable.” However, Raz declines “to argue that the special relationships the desirability of which would validate [bare promissory obligations] are indeed desirable.”   Some contract theorists embrace Raz’s formal observation and seek to ground contract law in one or another substantive conception of the value of the special relationships that exist among contracting parties.  One version of this approach emphasizes that contracts generally (some theorists claim always) arise inside already existing commercial and even social relationships. The “theory of relational contracting” seeks the basis for enforcing contractual promises in the norms that govern the background relationships. Legal sociologists working in this vein have emphasized that contracting, especially in commercial contexts, relies on the parties’ antecedent commitments to integrity or “common honesty and decency” (Macaulay 1963). Others emphasize social norms involving reciprocity and respect, especially within close-knit contracting communities (Bernstein 1992). Still others approach contract law through a theory of exchange relations according to which every contract is “necessarily partially” embedded in a thick context of extra-legal relations, from which it draws its legal authority and force (Macneil 1980).  Another set of theories emphasizes the formal structure of the legal relation of contract itself, even apart from any commercial or social relationships within which it arises (Markovits 2004; Bensen 2019). The doctrines governing offer and acceptance require contractual promisors to form (and to communicate) intentions that refer to their promisees. The parties to contracts, that is, intend to pursue ends that do not merely coincide but rather, to borrow a formulation from David Hume, “have a reference to” each other (A Treatise of Human Nature, L.A. III, 2, ii.). Moreover, each promisor intends not simply to do things but to be bound to do things, entrenching her deference to the promisee, intending to perform unless released. Her obligation endures at his option, so that she gives him power over her normative situation. Contracts, that is, establish the transaction as a normative unit.  A contractual promisor’s intentions, moreover, run not just to her own interest in the joint contractual project, or even to her promisee’s interest in this project (as she understands it), but rather to his perspective on the project, as this is the perspective from which he will decide whether to insist on her performance or to release her. In this way, the promisor recognizes her promisee as an authority over her, with respect to the promised contractual performance. She treats as a final end not just the joint activities described by her contracts but also his person—his will (which may insist on or relieve the duty to perform). Borrowing from Kant, one might even say that a contract constitutes “an act of the united choice of two persons” (The Metaphysics of Morals 6:271) so that offers and acceptances are “represented not as following upon one another but … as proceeding from a single common will” (6:273). Every contract, on this view, establishes a shared perspective over the contemplated performance.  Contractual obligations, according to such theories, are grounded in the value of a shared perspective. On one version, this value lies in the recognition immanent in the perspective, as promisors and promisees each treat the other as an independent person, imbued with the special normative status that asserting contractual authority involves. This approach treats the duty of good faith in performance, which the common law makes mandatory in every contract (UCC: §1-304; R2: §205), as contract law’s core doctrine, because it requires parties to show fidelity to the shared perspective of the contract relation when they administer their contracts (Markovits 2014). On another version, the value of the contract relation lies in the transfer of rights, completed at the moment of contract formation. This approach treats the consideration doctrine, which other theories regard as poorly justified and marginal to contract law, as contract’s central, organizing principle. Consideration ensures that every contract is indeed constituted as a transaction involving an exchange of rights (Benson 2019).  Accounts of contract that emphasize the normativity of the contract relation face a shared challenge, although it expresses itself differently for different versions of the view. The challenge is to explain why the motives parties adopt in the shadow of legal enforcement do not undermine the value of the special relationship, whose desirability grounds contractual obligation on the relational model. Theorists who embed the contract relation inside pre-existing social and moral relationships must explain why the self-interested motives associated with contractual compliance—“greed and fear” as G. A. Cohen (2009: 40–44) puts it—do not “crowd out” the desirable attitudes and motives out of which the enveloping pre-legal relationships are built. This concern has been much discussed—both the empirical reality of crowding out (see, e.g., Deci, Koestner, &amp; Ryan 1999; Gneezy and Rustichini 2000) and its normative significance for valued social relationships (Atiq 2014). Theorists who understand contract as a free-standing relation can avoid this challenge and might even embrace the crowding out of socially thicker motives as a feature of the contract relation rather than a bug (Markovits 2011). But the general problem remains in place of explaining how an arm’s-length relation among self-interested parties might establish a morally desirable form of solidarity. This challenge becomes especially pressing in light of the fact that most contracts have organizations as a party (Leib 2015). Organizations lack the properties of natural persons out of which the relational theories build their accounts of the normativity of the contract relation. Whereas contracts among organizations are the natural domain for economic theories (see  §1.3),  they are difficult for relational theories to compass. 1.5 Pluralism  The criteria for measuring a contract theory’s success remain vaguely defined, which is to be expected in an interpretive enterprise. We want our theory to fit and to explain contract law doctrines that are themselves sometimes contested. In addition, we want the law to be understood as worthy of our moral approval, with all the complexities and controversies that this involves. The competing theories of contract strike different balances between considerations of fit and justification and are based on competing views about what the law is and what it should be. Moreover, the differences among the theories—especially with respect to justification—involve fundamental disagreements about value, which makes compromise elusive. Whether any balance can be sensibly struck between, say, the value of promissory integrity and that of maximizing the joint surplus from contractual exchange remains unclear.  The “pluralist” finds in this stalemate reasons to question whether contract law is animated by one evaluative goal or master principle, rather than a plurality of independent and perhaps even incommensurable evaluative aims. Pluralism is more often presupposed in the literature than directly defended, and what defense there is usually takes the form of a critique of monistic views (see, e.g., Hillman 1998). The critique is qualified, however, since the monistic views are portrayed as offering genuine even if incomplete insights into contract law, contributing to the taxonomic project of mapping the values that undergird it (Hillman 1998; Klass 2008; Kreitner 2012). For pluralism to be more than a negative thesis, pluralists have considerable work to do in explaining contract law’s plural commitments, ideally offering more than a grab-bag list of values to be promoted (Lucy 2007).  An important question facing the pluralist is whether there are reasons for contract law’s pluralism. The answer might seem obvious, as if it were lawyerly commonsense. The law of contracts has developed over the course of several centuries, with many diverse juridical personalities disagreeing on how best to resolve contract disputes. Some of the law’s guiding principles have survived both this competitive process and changing normative fashions in the broader culture; others have been modified. The expectancy remedy and pacta sunt servanda principles may be relics of a bygone age’s commitment to bare promissory duty. But efficient breach and related doctrines have evolved to prevent promissory virtue from getting in the way of social welfare, especially in economies marked by a high-frequency spot contracts among parties with no relationship outside of the contracts at issue. These tensions within contract law are, as one commentator puts it, “historical and political accidents” (Alces 2008).  But there are also other explanatory possibilities. Contract law’s distinctive pluralism may reflect an indeterminacy in the realm of non-legal value. The promotion of promissory and collaborative virtue, or general welfare, or careful promising to avoid monetary harm, may be understood as falling largely within the realm of the (institutional) supererogatory rather than the realm of duty or basic justice. And if there is genuine indeterminacy regarding how these incompossible goods are to be integrated by a regime that aspires to do what is best (rather than exclusively what is obligatory), then the character of contract law’s pluralism might be explained in terms of judges “settling” a genuinely indeterminate moral question regarding the optimal institutional choice (Atiq 2018: 78, 88–97). Contract law is thus seen not as the incoherent end result of judges disagreeing on questions of morality and the social good, but as a distinctly juridical solution to a genuine evaluative dilemma: quasi-legislative stipulation by judges of the precise mix of goods to be institutionally promoted. Law’s usefulness in this regard, providing closure on problems of value pluralism, has been explored more generally in legal and political philosophy (see, e.g., Radbruch 1932; Finnis 1980; Williams 1985; Waldron 1996, Berlin 2002).  Even in this case, the central challenge facing the various strains of pluralism remains in place: that of explaining how law integrates its several and often competing normative commitments. To what extent are decisions informed by some “covering value”, in Ruth Chang’s (2004) terminology, or synthesizing principles? A recent proposal suggests an organizing principle based on a typology of contracts and contracting parties (Leib 2005). Wealth maximization may be appropriate in the enforcement of contracts between firms, for example, whereas promissory virtue becomes a more significant object of concern in contractual disputes between natural persons (see also C. Riley 2000). Along similar lines, Dagan and Heller (2017) suggest that distinct contract-types implicate distinct values, and that the organizing principle that determines which normative structure applies is the choice principle—the parties’ freedom to choose the rules that govern their exchange relations. Such proposals sit uncomfortably with existing law, which does not explicitly distinguish the application of its basic doctrines in this way, even if it should. 2. Philosophical Themes in the Law of Contracts  The second part of this entry explores questions in the philosophy of language (on meaning and interpretation), philosophy of action (the metaphysics of intention), and moral and political philosophy (freedom and distributive justice) as they arise in contract law.  §2.1  discusses work that brings tools from the philosophy of language to bear on questions of contract interpretation.  §2.2  examines the concept of freedom in contract through the lens of established doctrine and philosophical work on autonomy.  §2.3  explores how the pairing of orthodox contract theory with modern doctrine generates a puzzle about the nature of contractual intent. Finally,  §2.4  considers questions of distributive justice raised by private exchange. 2.1 Language, meaning, and interpretation  The law of contracts includes rules that map the parties’ speech acts onto legal effects. What the rules are that relate speech to legal obligation and what they ought to be are questions for legal and moral theory. But the conventional answers may be clarified using resources from the philosophy of language (Farnsworth 1967; Rosen 2011).  We begin with rules specifying the legally relevant feature of the parties’ speech. What a person intends to mean by their words can come apart from the actual meaning (the semantic content) of the words. In general, contract law is said to privilege “objective” over intended (or, as lawyers sometimes say: “subjective”) meaning as the basis for the parties’ legal obligations, at least where the intended meaning is not evident from context:   A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. … If … it were proved by twenty bishops that either party, when he used the words, intended something else than the usual meaning which the law imposes upon them, he would still be held, unless there were some mutual mistake or something else of the sort. (Hotchkiss v. National City Bank 1911)   This preference for objective meaning, moreover, reaches the interpretation of the speech acts through which contracts are entered into, such as offers and acceptances (R2: §24). Proponents of the so-called “objective theory of contracts” regularly invoke the “usual”, “objective”, “reasonable”, or “plain” meaning as distinguished from the meaning that the parties “attached” to their words (R2: §201). Since talk of meaning is often ambiguous, we must be cautious in interpreting such locutions. The gloss that’s sometimes given in law is that objective meaning concerns what a reasonable person in the position of the addressee would have inferred was meant based on the available evidence.  A related set of legal rules specify the core contractual text to be interpreted and what evidence determines its meaning. The “parol evidence rule” (“PER”) establishes a preference for writings over prior or contemporaneous oral agreements (UCC: §2-202). The rule, in its traditional statement, entails that where a writing exists, oral agreements (inferable from testimony) that are “extrinsic” to the “four corners of the document” do not become part of the contract. Some versions of the PER forbid the use of extrinsic evidence to “introduce an ambiguity” into a writing whose terms are otherwise clear and unambiguous. In addition, once the contours of a contractual text are set, principles of contract interpretation favor (to varying degrees in different jurisdictions) giving words meanings that are familiar to judges rather than meanings that are idiosyncratic to the parties. The interaction between the PER and the principles of interpretation entails a complication that runs through the legal practice of extracting meaning—namely that contracts themselves (especially written contracts) often seek to set their own boundaries and regulate their own interpretation, and the law both permits and resists such efforts.  “Textualism” in contract law can be defined as the view that (a) contractual obligations stem from the objective meaning of the parties’ speech acts, (b) writings trump oral communication, and (c) a text’s meaning must be inferred from a restricted evidence-base. “Contextualists,” by contrast, favor considering prior and contemporaneous oral agreements, which might help interpret, add to, or even vary the terms of a writing. There are good reasons in favor of either textualist or contextualist approaches to fixing meaning, relating to the costs of drafting in the shadow of various interpretive regimes, the costs of litigating meaning, and the temptations that parties face to make opportunistic claims about what their contracts require. But textualists and contextualists sometimes—and much less plausibly—cast their positions as required by basic and very general features of language.  Textualists—for example, Alex Kozinski, formerly a judge of the United States Court of Appeals (Ninth Circuit)—worry that contextualism:   chips away at the foundation of our legal system. By giving credence to the idea that words are inadequate to express concepts, [contextualism] undermines the basic principle that language provides a meaningful constraint on public and private conduct. (Trident Center v. Connecticut General Life Ins. Co. 1988)   Contextualists, for their part, sometimes seem to reject widely shared assumptions about language. Kozinski’s opinion criticized a leading contextualist opinion by Roger Traynor, writing as Chief Justice of the Supreme Court of California. Traynor held that courts should consider all extrinsic, contextual evidence to determine whether written terms are ambiguous, while defending the holding based on doubts about the “inherent meaning of words”:   If words had absolute and constant references, it might be possible to discover the contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant references. A word is a symbol of thought but has no arbitrary fixed meaning like a symbol of algebra or chemistry. (Pacific Gas &amp; Electric Co. v. G.W. Thomas Drayage &amp; Rigging Co. 1968)   Traynor followed an influential tradition in legal scholarship skeptical not just of the parol evidence rule, but of the very possibility that the impersonal semantic content of the parties’ speech acts might come apart from the contextually salient intended meaning (see, e.g., Wigmore 1923: 378).  From a philosophical perspective, these general arguments paint too quickly and with too broad a brush. On the one hand, practical considerations that support looking to broader context when interpreting writings plainly do not undermine anything so general as the idea that words can convey shared meaning. On the other hand, it would equally be surprising if embracing contextualism meant having to deny the platitude that speakers of language can be mistaken in ways that allow public (or even legal) meaning to come apart in contextually manifest ways from intended meaning. Contextualist skepticism about impersonal semantic content is surely separable from the practical question of whether restricting the evidence base for discerning meaning best serves the various goals of contract law, including fairness to the parties and minimizing burdens on courts (Rosen 2011).  Gideon Rosen suggests an alternative conceptual framework for the debate between textualists and contextualists, one that deemphasizes the parties’ semantic intentions. Following Grice (1957), we can distinguish the parties’ semantic intentions in relation to their speech acts (intentions to mean this or that by one’s words) from their pragmatic and distinctly legal intentions (the intent to cause legal effects via one’s speech acts, like the creation of a judicially enforceable promise). The parties’ legal intentions—which seem to matter, ultimately—can come apart from their semantic intentions. In re Soper’s Estate (1935) offers an illustration. In that case, the deceased designated his “wife” as the beneficiary of his estate. However, Soper was legally married to person 1, faked his own death, and then “married” person 2. We can set aside what “wife” objectively means in this context. We can also stipulate that Soper’s legal intention was to leave his estate to person 2. Suppose Soper’s semantic intention was to refer to 2 under the description my wife in the legal sense on the erroneous assumption that his prior marriage to 1 was not a legal impediment. Clearly, the semantic intention to refer to 2 as his legally recognized wife would have been irrelevant to what Soper was trying to accomplish legally by writing his will. We can, of course, construct alternative scenarios where the semantic intention is relevant to Soper’s legal intent. Indeed, contract law’s interest in semantic intentions is explained by the fact that, in general, what we intend to mean by our words bears on what we are trying to accomplish legally. But In re Soper’s Estate illustrates that the connection is contingent—the alignment that usually exists between the legal effects that we intend to produce and the descriptions under which we intend to produce them is far from guaranteed.  Accordingly, the debate between textualists and contextualists might be fruitfully recast in terms of: (a) whether the parties’ speech acts should be mined for impersonal semantic content or the parties’ legal intentions, and (b) whether the court should rely on a narrow or broad evidence base to infer the legally relevant facts about speech (Rosen 2011, 163). Rosen’s framework is not intended to apply to situations where the parties have conflicting legal intentions or cases where the contract is silent on the parties’ responsibilities. Separate legal rules and considerations—those concerning misunderstanding (R2: §201) and gap-filling (R2: §204)—bear on such cases.  In re Soper’s Estate illustrates a more general phenomenon of philosophical interest: natural language as a source of contract disputes (Farnsworth 1967). Work in this area aims to characterize and distinguish the ways in which the parties’ linguistic choices can interfere with contractual coordination. Famous contract disputes have involved homonymy (two ships bear the name “Peerless” and the parties do not intend to refer to the same ship: Raffles v. Wichelhaus (1864)), semantic ambiguity (the word “chicken” in the trade has a broader and narrower meaning: Frigaliment Importing v B.N.S (1960)), syntactic ambiguity (an insurance policy covers any “disease of organs of the body not common to both sexes”: Business Men’s Assur. Ass’n v. R (1927)), pragmatic or “latent” ambiguity (In re Soper’s Estate, discussed above); vagueness (parties agree that a “materially adverse change” to the financial health of a business qualifies the buyer’s obligations: In re Carter’s Claim (1957)) and under-specification (parties agree to the sale of “one of the seller’s warehouses”). For a general discussion of how to distinguish these and related phenomena, see the entry on  ambiguity. 2.2 Freedom and autonomy  Contract law is based on the model (or idealization) of “voluntary exchange … between autonomous individuals” (Radin 2007: 196). Contracts are enforced on the assumption that parties possess the capacities necessary for informed and voluntary choice (R2: §15), while fraud, duress, and various forms of pressure in bargaining represent grounds for recission (R2: §§164, 175, 177). A preliminary question is why the law should be so concerned with freedom and autonomy in contractual exchange. As previously discussed, the rearrangement of private property might be justified on grounds of efficiency or general welfare (see  §1.3).  The law’s guiding principle could be hypothetical or reasonable consent—what parties would or should consent to—rather than actual consent. The importance of actual consent seems clear enough where exchange impinges on domains over which persons retain special sovereignty, including their own body and mind (Mill 1859; Hill 1991; Enoch 2017). But not every contractual exchange impinges on bodily or mental integrity, and the importance of actual consent to contracts at large is therefore not obvious.  Voluntariness might be important to contracts for a number of reasons. A law of involuntary or forced exchange would risk people’s welfare, not just their autonomy. The parties’ consent better tracks exchange efficiency than a court’s judgment. Apart from welfare concerns, if contractual obligation is grounded in promissory morality (see  §1.1),  then promissory principles constrain the law of contracts, including those that condition an agent’s responsibility on a promise having been made freely (Hurd 1996). The choice condition avoids unfairly holding individuals to duties that they lacked a reasonable opportunity to avoid incurring (cf. Scanlon 1998, Watson 1996).  Since voluntariness in contract likely serves several distinct normative functions, its analysis presents a challenge. What powers must an agent exercise over her contractual affairs for her obligations to count as voluntarily undertaken? The law deems agents incapable of contracting if they lack either (1) the ability to understand the nature of a transaction and be responsive to reasons for and against agreeing to it (see R2: §15 and Buckareff and Kasper-Buckareff 2014; on reasons-responsiveness as a general criterion for moral responsibility, see Fischer and Ravizza 1998), or (2) the ability to exercise a degree of control over their choices. Bix (2010) suggests that the common law follows Aristotle in treating an agent’s knowledge and capacity to respond to her reasons, and not just her capacity to act on desires she identifies with, as constitutive of her freedom to contract. In addition to general incapacity, the common law recognizes specific threats to contractual freedom, including lack of material information due to fraud or non-disclosure, intoxication, duress, and, to a lesser extent, cognitive biases when preyed upon within a relationship of trust (R2: §§ 16, 161–163, 173–175). The precise content of these rules is controversial. For instance, there is no legal requirement that parties disclose all relevant information in the generic commercial transaction (F. Miller &amp; Wertheimer 2010), and the line separating permissible from impermissible information asymmetries is deeply contested (Kronman 1978; Craswell 2006).  The concept of duress is similarly fraught. The law distinguishes “physical duress”, which bypasses the coercee’s rational control over her actions, from duress via “wrongful threats” which operates through the will of the coercee (R2: §§ 174-5; cf. Nozick 1969). A threat is considered wrongful when the threatened consequence leaves the coercee with “no reasonable alternatives” to compliance. The law does not give detailed guidance on the baseline of “reasonable alternatives” against which the wrongfulness of a threat might be measured. The question of the baseline has attracted significant commentary in the philosophical literature on coercion. Nozick (1969: 446) offers a characterization in terms of the “normal or natural or expected course of events”. Others have analyzed the baseline in explicitly normative terms, as a set of options that persons ought to have as a matter of right (Wertheimer 1987; cf. Berman 2002). While the paradigmatic threat (“your money or your life”) makes the coercee worse off relative to her baseline regardless of compliance, threats in commercial exchange are often more subtle. An offeror might threaten to worsen the offeree’s situation if she refuses an offer, even if its acceptance would be baseline-improving. To illustrate, if workers refuse to work under the terms of an existing contract unless the employer consents to a modification, the employer may be under duress even if the proposed modification is mutually beneficial.  A precise account of when an agent lacks “reasonable alternatives” might help distinguish wrongful threats from permissible offers, given that offers, like threats, aim to influence behavior, and might be experienced by the offeree as leaving her no option but to accept. Several theorists have argued that baseline-improving offers can be coercive. On David Zimmerman’s (1981) view, an offer is coercive if its acceptance locks the offeree into a life situation that prevents her from seeking better alternatives than what the offeror proposes. Joan McGregor (1988) suggests shifting focus from baseline improvement to whether the offeror exercises power over the offeree within a relationship of dependence. On McGregor’s analysis, an offeror exercises power when she has control over a considerable harm that might fall on the offeree (see also O’Neill 1991; Pettit 1996). While the analysis may not quite fit the law’s concept of duress, it is arguably implicit in the common law’s unconscionability doctrine, which polices one-sided contracts between parties with unequal bargaining power. For a more detailed discussion of the distinction between offers and threats, see the entry on  coercion.  In addition to threats and exploitative offers, agents may be subject to influences in the bargaining process that impair their ability to decide rationally or based on their considered and robust desires (on conceptions of freedom that identify some but not all of the agent’s desires with her will, see, e.g., Frankfurt 1973 [1988], Yaffe 2007). A seller might take advantage of a buyer’s innumeracy or cognitive biases in eliciting her consent. While the law recognizes a category of “undue influence” as grounds for recission, the doctrine’s application, in addition to being undertheorized, is usually limited to cases involving a special relationship of trust. It is widely acknowledged, however, that rationality failures can be exploited within exchange relationships, and the potential for exploitation is often the basis for regulatory intervention. A comprehensive analysis of freedom in contract should therefore clarify what forms of persuasion count as instances of wrongful control, a question that accounts of duress and uninformed consent do not necessarily address. 2.3 Intentionality  On the standard picture, contractual obligations are grounded in the parties’ promissory intentions, or in such intentions as might reasonably be inferred from the parties’ speech acts. The standard picture needs a philosophy of action if modern doctrine is to be convincingly justified. The demands of mass contracting mean that contracts are often entered into without bespoke drafting or indeed any dickering at all. The law finds contractual obligations in such thoughtless acts as selecting “I agree” on a software license form without reading its terms (Rakoff 1983; Barnett 2002; Radin 2014). Form-drafters usually have reason to know that such actions are thoughtless and, also, that the average consumer is generally not in the position of being able to bargain for better terms. Indeed, form-drafters often arrange their contractual practices to make bespoke bargaining impossible, for example by having their forms presented electronically or by employees who are not empowered to modify terms. The reasonableness of imputing promissory intent in such circumstances seems questionable (Radin 2007; 2014).  The puzzle is magnified by the pervasiveness of form contracting in modern markets and by the details of contract law doctrine. For example, the law’s treatment of standard forms as agreements is not so easily dismissed as a “convenient fiction” justified by the general need to enforce standard forms given the many important functions they serve, from allowing large organizations to solve agency problems to saving the consumer costs associated with bargaining over low probability events (Rakoff 1983: 1220–1245). Anglo-American contract law has long recognized a category of “as if” or “quasi-contracts” (see, e.g., Baily v. West (1969)) whose enforcement is justified on exceptional, non-promissory grounds. That is, the law acknowledges cases where promissory intent may be lacking but duties of a contractual form are imposed anyway. In a paradigm case, justification is said to reside in hypothetical consent: an unconscious patient who receives life-saving treatment from a physician without previously consenting owes remunerative duties on a quasi-contractual basis insofar as the patient would have consented if she could have. The law does not subsume standard forms under the category of quasi-contracts. On the contrary, the law enforces standard forms as bona fide agreements.  A natural thought is that the basis for contractual obligation may be found in a vague promissory intention. Most promises leave room for further specification while still being sufficiently specific to produce reasonable reliance. Sam promises to help Susan move homes but without specifying whether he intends to labor personally or pay a mover. Sam incurs a general duty owed to Susan that can be variously satisfied. Modern contract law, moreover, is quite comfortable with filling in gaps in incomplete contracts (for example, imputing a market price where no price is mentioned: UCC: § 2-204(3)) and rendering vague terms precise (for example, fixing the payment meant by an employer’s promise of “reasonable recognition” for inventions made by an employee, see Corthell v. Summit Thread Co. (1933)). A consumer’s intention in agreeing to a form contract may be some underspecified form of compliance with its terms, which the law can render precise as it usually does.  The problem with this approach is that agents are usually able to precisely state the contents of a vague promise when invited to do so, whereas the average consumer, having never read a standard form, is hardly in the same position. More generally, even vague promissory intentions must satisfy minimal criteria for being an intention. On the simplest analysis of prospective intention, to intend an action is to believe that one will perform it and to have an appropriate guiding desire (Audi 1973, 395; cf. Harman 1976; Davis 1984). That consumers form beliefs about all their contractually contemplated future actions when they agree to a form contract seems questionable. On an alternative picture, intentions are a distinctive mental state (not reducible to beliefs or desires) with a unique functional role of guiding and controlling the agent’s behavior as well as her reasoning (Bratman 1987: 20; see, more generally, the entry on  intention).  Whether the average consumer forms any such future-directed, action- or reasoning-guiding mental state when she agrees to a standard form is similarly doubtful.  Barnett (2002) suggests that the puzzle is best addressed by shifting from a promissory theory of contracts to an adjacent consent-based theory (Barnett 1986). While the concepts of consent and promise fall in the same normative family (Hurd 1996), the criteria for consent may be less demanding. Nevertheless, the view confronts parallel worries, since what was consented-to remains opaque. Barnett suggests that a consumer’s consent is limited to those terms that are not radically unexpected (637), but the basis for such empirical assumptions about consumer intent remains unclear. It is doubtful that the average consumer considers the question of what, if anything, she is consenting to when she mindlessly clicks “I agree” (Radin 2007; 2014; Kar &amp; Radin 2019). Ultimately, the problem is not even due to standard forms including standard(or non-bespoke) terms or the terms being unread by the consumer. The problem stems directly from the fact that the consumer’s actions in virtue of which the law finds an intention to be bound appear thoughtless—that is, lacking in intentionality.  The point of the discussion is not to critique the orthodox view of contracts as promissory (or chosen) obligation (for general criticisms, see  §1.1),  but to suggest that the standard picture needs an account of prospective intention. Not just any view of what an intention is fits both the standard picture and modern legal practice. It may be that an agent’s intention, in the relevant contractual sense, is revealed not by her articulable beliefs or action-guiding attitudes in the moment, but her unconscious dispositions. Given that most consumers comply with standard forms without contesting their validity, this general fact about consumer behavior might make it reasonable to impute a disposition to be bound. On the other hand, behavioral research suggests that people “are more likely to comply with contracts they participated in negotiating” (Eigen 2012: 67). At the same time, a consumer’s reasons for complying in subsequent disputes may be entirely disconnected from her original intentions. The view risks conflating the fact that a person’s compliance is predictable ex ante with the fact that she intends to comply. If these and other challenges can be overcome, however, then a dispositional theory of contractual intention may offer a better fit with orthodox contract theory and modern practice than the available alternatives. 2.4 Distributive fairness and the ethics of surplus sharing  Contract law raises questions of distributive fairness. Should the design of legal doctrine be sensitive to its distributive effects? Should parties consider distributive fairness in fixing the contents of particular agreements? The individual and institutional questions are of course related. Interpersonal obligations arising out of contract’s internal normative structure might serve as a basis for institutional design.  Beginning with legal doctrine, we can distinguish rules that seem more concerned with procedural aspects of justice, especially freedom and autonomy in the lead up to agreement, than justice in the final distribution of benefits and burdens. Any number of doctrines—fraud, duress, and undue influence, for example—protect weaker parties from being deceived, coerced, or manipulated into contractual obligations (see  §2.2).  Moreover, the duty of good faith in performance, one of the few mandatory duties that the law imposes on every contract (UCC §1-304; R2: §205), prevents one party from exploiting her counterparty’s strategic vulnerabilities (often incurred on account of the contract itself) to “recapture opportunities forgone at formation” (Burton 1980: 387). This approach to good faith is procedural insofar as it makes the contract—the allocation of opportunities the parties opted into —the measure of what good faith requires.  However, a few contract law doctrines address distributive concerns more directly. For a time, it looked as if the doctrine of “unconscionability” might inscribe substantive limits on contractual inequality into consumer law, at least with respect to low-income consumers (UCC: §2-302). The doctrine of unconscionability has two components: “procedural unconscionability” arises when one side exploits inequalities of bargaining sophistication or power to its advantage; and “substantive unconscionability” arises when the terms struck unreasonably, and extremely, favor one side. Traditionally, both elements must be separately demonstrated to establish unconscionability, but for a brief period, it looked as if substantive unconscionability, standing alone, might allow a consumer to avoid an onerous contractual obligation (see, e.g., Jones v. Star Credit Corp., 1969). This line of doctrine was quickly narrowed (see, e.g., Patterson v. Walker-Thomas Furniture Co., Inc., 1971). Today, unconscionability requires (to varying degrees in different jurisdictions) a procedural element, so that a contract’s substantive injustice is not, without more, sufficient to render it unenforceable. Moreover, on the conventional interpretation, the procedural element requires some sort of bargaining abuse so that it is not enough that one contracting party is less economically privileged and therefore more economically vulnerable. Other doctrines that subject contractual terms to distributive scrutiny similarly emphasize procedural and transactional aspects of justice. The doctrine of contra proferentum, for example, calls for contracts to be interpreted against their drafters. And any number of provisions in the UCC authorize courts to fill contractual gaps, interpret ambiguous terms, or regulate renegotiation, with courts often exercising their discretion in ways that favor unsophisticated (and often poorer) parties (Rakoff 2016). For this reason, although the application of doctrines like unconscionability might be driven by considerations of distributive justice, the law does not make distributive justice a freestanding criterion for the enforceability of contracts. An argument might be made that the law embodies an Aristotelian conception of commutative justice (Gordley 1991), so that contractual exchange must deploy a “just price,” which allows neither party to enrich itself at the expense of the other; but an analogous claim that the law exemplifies a general concern for social and income inequality would be hard to maintain.  Several theorists have favored broadening the egalitarian doctrines of contract law. On one proposal, forms of advantage-taking in contractual exchange through non-disclosure of information should be tolerated only to the extent that permissive rules confer long-term benefits on those who are most vulnerable (Kronman 1980). The proposal draws support from a prioritarian principle of weighted beneficence, according to which benefits to the worse off have greater moral weight. Along similar lines, Aditi Bagchi (2014) argues that ambiguous terms in contracts should be interpreted in ways that promote distributive justice by benefiting the economically worse off. The law of contracts thus becomes a tool for improving the unequal background conditions in which exchange occurs, conditions that undermine the validity and authenticity of people’s choices, and, relatedly, the moral basis for enforcing contracts in the first place (Ackerman 1983; Kennedy 1982).  Contract law egalitarianism draws support from an extensive literature in moral and political philosophy that has questioned the legitimacy of exchange relations in unequal societies. John Rawls’ seminal work has been especially influential. Rawls (2005: 266–267) observes that the free market allows everyone to gain through private exchange, but it also allows those who are already more advantaged to capture as much of the contractual surplus as they are able to, so that “the invisible hand guides things in the wrong direction … maintaining unjustified inequalities and restrictions on fair opportunity.”   Contract and property law, together with institutions of tax-and-transfer, arguably fall within the “basic structure” of society—that is, the category of institutions that so pervasively influence people’s lives as to demand special justification (Murphy 1998: 260–261). For Rawls, the basic structure’s justification depends on what parties would rationally agree to ignorant of various aspects of their situation, including their economic circumstances. Rawlsian “maximin principles” prioritize the interests of those who are worse off. While a full analysis of Rawls’ work and its influence on modern contract theory is beyond the scope of this entry, readers can see related entries (on  distributive justice  and the  original position)  for more detail.  Rawlsians are hardly alone in questioning the legitimacy of private exchange in circumstances of inequality. Marx (Das Kapital, 3:339–40) famously questions the alleged “natural justice” of private exchange and the juristic treatment of economic transactions “as willful acts of the parties concerned”, viewing exchange relations in capitalist societies as invariably exploitative (see discussion in Arneson 1981: 205; cf. Cohen 1995). Exploitation raises questions of meaningful consent and coercion, some of which were discussed earlier (see  §2.2).  But implicit in Marx’s concept of exploitation (assuming the view to be less than fully skeptical of considerations of justice) is a distinct moral notion: the failure of private exchange to ensure parties receive as much as they deserve based on their productive contributions and sacrifices (cf. Cohen 1995: 116–117; on moral desert, see below).  Contract law egalitarianism at the institutional level confronts two standard criticisms. First, it is not obvious that judges have the authority or competence to promote distributive justice. A tax-and-benefit scheme may be a more effective means of promoting the interests of the economically worse off than private law, though whether this is true remains an open empirical question (Kaplow &amp; Shavell 1994; Lucy 2007: 352–6; Liscow 2021 [Other Internet Resources]). Second, contract disputes are private affairs, and people deserve protection from being singled out to bear the burdens associated with the collective’s moral responsibilities. Thomas Nagel (1991: ch9) describes a division of moral labor between, on the one hand, institutional actors responsible for the basic legal structure, and, on the other, ordinary citizens acting in their private capacity. In general, persons may lead better lives if freed from the obligation to manage their exchange relations altruistically. The point seems consistent, however, with courts being obliged to enforce negative duties—for instance, a duty not to take advantage of the collective’s failure to secure distributive justice (Murphy 1998: 266; Bagchi 2014). The common law’s unconscionability doctrine appears tailor-made to police this kind of predation by the economically privileged of the disadvantaged.  We turn from the institutional-level question to the question of what contracting parties individually owe one another. Contracts generate surplus from cooperation—each side typically stands to benefit through exchange. How that surplus ought to be divided is not necessarily settled by assuming that the parties transact from a place of equality. Robert Nozick’s (1974) famous discussion of “justice in transfer” provides a convenient starting point for exploring the ethics of surplus sharing. Nozick suggests that inequalities arising out of voluntary transactions do not give rise to a question of justice, given fair background conditions. On Nozick’s “voluntarist” view, whatever sharing scheme is voluntarily agreed to (setting aside stealing, fraud, etc.) is just, or, alternatively, no question of justice is raised by a division the parties consented to (for a more detailed statement, see Nozick 1974: 149–182). There are other more qualified strains of voluntarism. A “sufficientarian” might insist that the consented-to division must satisfy a minimal baseline. Sterba (1986: 8) articulates a “Needs and Agreement Principle” under which the results of voluntary agreement and private appropriation are morally justified only insofar as each person is guaranteed the goods necessary to meet the normal costs of satisfying her basic needs. Sufficientarian constraints might entail, for example, that those involved in the provision of essential goods or services—basic medicine or education—owe more robust duties to those with whom they contract.  Moving further away from pure voluntarism, a prominent approach distinguishes between deserved and undeserved shares of cooperative surplus. Nozick is sometimes criticized for assuming that persons are entitled to that portion of the market price for their goods and services characterizable as “scarcity rent” (B. Fried 1995: 230). Rent is defined as a gain that exceeds what is necessary to incentivize cooperative exchange. Excess gains in market exchange are often attributable to natural scarcity, including scarcity of natural talents. Whether persons deserve such windfalls flowing from brute luck in the birth lottery remains a deeply contested moral question. Some find a desert-basis in effort and other forms of personal sacrifice, including delayed gratification (as in investment contracts). On this view, parties are owed at least as much of the surplus from a cooperative scheme as would constitute fair compensation for their sacrifices (Reiman 1983; Sadurski 1985; Milne 1986). Others finds a desert-basis in productive contribution. Parties to contractual exchange deserve fair remuneration for their marginal product (D. Miller 1976; Miller 1999; J. Riley 1989). Marginal product is defined as a factor’s distinctive contribution to raising the value of goods and services, holding other factors constant. The central moral intuition, here, is that people ought to receive benefits from exchange in proportion to how much they improve the wellbeing of others (Lamont 1994). The productive contribution theory is sometimes motivated on general consequentialist grounds (rather than notions of moral desert), with rents explained as the premium necessary for incentivizing parties to put their talents to productive and wellbeing-maximizing use (Arnold 1987).  Both the effort and productive contribution theories rely on concepts that invite further specification. Consider the concept of marginal product. What is produced by one’s efforts depends on the productivity of the tools and raw materials one has at one’s disposal. The state is a contributing participant, also, in every cooperative exchange (B. Fried 1995). Given that many people make interdependent contributions to social product, the link between any individual’s labor and output seems too attenuated to ground anything more determinate than the claim that people deserve something based on what they produce (Scanlon 2018: ch8). And it is hard to see how so general a normative claim could bear the weight of justifying any precise proposal for surplus division.  Gauthier (1986: 140–141, 152–153) suggests that cooperative surplus might be split according to the ratio of the parties’ “individual relative benefit from cooperation”. Each party’s relative benefit from exchange is measured by their next best option. If A and B generate $10 of cooperative surplus, and A could have earned $3 acting independently of B, while B could have earned $4, then the maximum A can claim of the surplus is $6 consistent with inducing B’s willing cooperation, and the maximum B can claim is $7 for a parallel reason. When the $10 surplus is split based on a 6:7 ratio, each party receives such benefits as she would expect apart from cooperation and, in addition, receives a share of the surplus proportionate to her potential for benefiting from the exchange. Gauthier defends the proposal as a solution to a bargaining problem confronting self-interested rational agents, but it is morally contestable. It remains unclear why a party should receive more just because they had a better alternative, since the availability of an attractive alternative may be a function of brute luck. Moreover, Gauthier’s principle does not guarantee that parties receive a share commensurate to sacrifice or productive contribution (Van Parijs 1996).  The proposals considered so far invoke considerations of pre-institutional morality and/or rationality. But the ethics of surplus sharing might instead be traced to established customs. Macneil (1986) suggests that markets give rise to complex norms of “gift-giving” in commercial exchange. These gift-giving norms encourage agents to refrain from claiming as much of the surplus as possible and have an important role to play in maintaining social bonds, especially in contexts where constant haggling undermines trust and creates impediments to contracting. For example, sellers of antiques will offer discounts to those who reveal their enthusiastic interest in purchasing an item. By rewarding disclosures against self-interest, the sellers promote solidarity and cooperation in the market for antiques. Macneil observes that norms of gift-giving are more likely to emerge where the cooperative surplus is large and repeat interaction generates high interdependence.  A question facing the social solidarity view is why market participants should feel obliged to comply with customary norms. Custom is sometimes portrayed “as the embodiment of what parties in the relevant community actually, not fictitiously, consent to when they manifest their intention to be legally bound” (Barnett 1992: 1192).   On this view, the parties’ expectations become the grounds for complying with the relevant surplus sharing norms, although expectations, even ones based on longstanding customs, are not always reasonable or fair. Another possibility is that the reasons for compliance may be grounded in general, consequentialist considerations concerning the importance of reinforcing socially beneficial customs. A third is that compliance produces additional surplus by lowering transaction costs.  In the final analysis, a broad range of distributive considerations arguably ought to shape bargaining behavior, and the above discussion is not intended to be exhaustive. As should be apparent from the lack of convergence among theorists, the moral question of justice in transfer that is at the heart of contract remains far from settled. 