Deconstructing Contract Doctrine [1985]

Doctrinal arguments cast in terms of public and private, manifestation and intent, and form and substance, continue to exert a stranglehold on our thinking about concrete contractual issues. This chapter illustrates the poverty of traditional doctrinal arguments by examining the use of contract doctrine in recent cases involving the agreements of non-marital cohabitants. Significantly, the opinions largely ignore the aspect of the public-private debate that appears in contract doctrine as the set of rules governing duress and unconscionability. Consideration doctrine offers yet other opportunities for the conflation of public and private, and the introduction of competing values, norms, and understandings into the resolution of these cohabitation cases. Just as in the area of interpretation, the crucial additions are judicial conceptions of sexuality, and of woman's role in her relationship with man. The doctrinal treatment of cohabitation agreements, however, like the treatment of contracts in general, usually pays little attention to questions of power and fairness.