The distinction between status and contract permeates legal analyses of categories of cooperative interpersonal interactions in which one party has particular obligations to the other. But the current binary understanding of the distinction has facilitated its use as a foil and thus undermined its conceptual and normative significance. This predicament is understandable given that the innate, comprehensive and inalienable status as well as the wholly open-ended contract anticipated by commentators are corner – rather than core – alternatives in a liberal polity. Hence, to clarify these normative debates we introduce two further, intermediate conceptions: office and contract type. Like the innate status, an office, such as our example of parenthood, is often subject to immutable legal rules and its core obligations not fully assignable; by contrast, a contract type, such as our example of financial fiduciaries law, is mostly subject to default rules that can be rejected or adjusted by the parties and even core tasks can be delegated. These differences derive from and properly reflect the divergent relationships to which offices and contract types apply – identitarian or instrumental – as well from the salience of the asymmetrical vulnerability of one of the parties.
Hanoch Dagan & Elizabeth S. Scott,
Reinterpreting the Status-Contract Divide: The Case of Fiduciaries,
Forthcoming in: Paul B. Miller & Andrew S. Gold, eds., Contract, Status, and Fiduciary Law (Oxford: Oxford University Press, 2016); Columbia Public Law Research Paper No. 14-476
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1916