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Daniel Markovits's Contract and Collaboration is a thought-provoking and ground-breaking inquiry into the ethics of contract. It argues that the philosophical foundation of contract may be found in what Markovits calls the collaborative view: a principle of forming respectful communities of collaboration where contractors treat each other as ends in themselves and refrain from treating each other as mere instrumentalities. Markovits acknowledges that there are three prototypical forms of contracts: (1) person-to-person; (2) person-to-organization; and (3) organization-to-organization. He is refreshingly honest in arguing that his theory of contract only addresses Type (1) contracts. I wish to argue here that this feature of Markovits's account severely curtails the possibility of treating the collaborative view as a general theory of contract as such. Part I of this Essay summarizes the portion of Markovits's collaborative view upon which I shall focus. Part II argues, pace Markovits, that Type (2) and Type (3) contracts are part of the “conceptual core” of contract for which a general theory of contract must account. And Part III offers some concluding thoughts about conciliation in contract theory.

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Contracts Commons