Implicit dimensions of contract law


I am taking on the problem constituted by the implicit dimension of contract. Someone should.

The thing is, legal science is still recovering from the effects of the protracted crisis of Subjectivity following the collapse of (German) idealism and is still, albeit unreflectively, clinging to the scientistic, realistic and anti-metaphysical positions established during the first few decades of the 20th century. This holds for Scandinavian, including Swedish, private law in particular (the so-called Uppsala School of philosophy and jurisprudence has, curious as it is, a lingering influence on the episteme of this discipline – here, the old designation “Scandinavian legal realism” still applies). As a result, the modern academic study of contractual phenomena, in Sweden, has consistently privileged that which is explicit, palpable and manifestly real, while treating that which is implicit, silent and moving, as it were, in the fringes of the scholar’s visual field, with skepticism, even hostility.

Now, seeing as meaning, e.g. the meaning to be ascribed to a contract text, is never in itself an objective fact – but ever and always only the end result of interpretation – this attitude, this “love of the real” (Nietzsche), makes for bad hermeneutics. The courts however – always pragmatic – have shown the rigorous scientistic ideology of legal science little respect. During the course of the last hundred years they have, in their constant and concrete handling of the law, applied and developed a number of doctrines and concepts that – much to the dismay of concerned legal scientists – doesn’t make sense, at least not when judged from the perspective of legal science, and what other regime gets to define what is rational, and what is not, within the legal sphere? (The situation can be analysed in terms of power – Who leads and who follows? – prompting an attempt to unravel the intricate dialectic of legal theory and legal practice.)

A case in point is the doctrine of silent guarantees (sw. “tysta utfästelser”), developed by the courts to allow for equitable results in cases were the law has made the presence of a guarantee a prerequisite for awarding an injured party compensation. Under certain circumstances, the courts have held that such a guarantee can and should be considered implicit. There is a guarantee, only a silent one.

This device is not looked upon favourably by traditional legal science. A “silent guarantee” comes out as a contradictio in adiecto when subjected to the logic of “legal realism”. Indeed, in the learned literature, the standard terminology marks silent guarantees as “fictional guarantees”, i.e., guarantees that has no basis in reality – and, it should be added, within the realist framework of analysis, “fictions” are the worst possible kind of entity (or non-entity).

And so it is that this particular aspect of our case law – the doctrine of silent guarantees – is quite poorly understood by legal science. We simply lack the conceptual tools to deal with matter so insubstantial. (It is so fleeting that it escapes us.) I would like to amend this situation, if I’m able. Having tentatively identified three areas of law were the courts have put the doctrine of silent guarantees, or analogous constructions, to use (namely: 1) essential attributes in real estates; 2) product liability ex contractu; 3) hidden co-ownership of spouses and co-habitees) I intend to subject the extant case law to a sympathetic reading – drawing on the tradition of hermeneutics and Vernunftskritik stemming from the third Critique of Immanuel Kant – as articulated by Dostoyevsky, Nietzsche and Heidegger, among others – making it possible, perhaps, to dislocate one or two of the building blocks of the present paradigm and to bridge the gap – a gap that has been widening ever since the first half of the 20th century – between legal science and academic culture in general. In the process, the relation between the courts and legal science is, effectively, reversed: Praxis (life) masters theory.

So, that is it. I aim at making the implicit intelligible – to make that which is silent speak.

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Samuelsson, Joel