Context as Power : Defining the Field of Battle for Advantage in Contractual Interactions

This article explores the appropriate role for explicitly extra-legal contextual factors in regulation, creation, and enforcement of contracts. While contract law appears relatively neutral and acontextual on its face, extra-legal factors such as party status, the circumstances of the bargain, performance by the parties, trade usage and custom, and background political, economic, and social factors may be more determinative of the outcome of contract disputes than the explicit terms and legal rules applicable to the parties’ transaction. It arguably follows that courts should expansively use context to enforce the “real” relationship between the parties. Potentially, expansive use of context may provide courts with a more accurate sense of the parties’ subjective agreement. But while contextual approaches to contract hold real promise as a means of critiquing and understanding contract law, there is little evidence that courts can actually use context to achieve a more accurate picture of the parties’ real relation. This article instead argues that deliberate attempts to expand the use of implicit contextual factors may be understood as attempts to delegitimate existing contract regimes and shift bargaining power to apparently disadvantaged parties