The Power of Contract

What endows a contract with authority, with motive power?  In the matter of an intrinsically valid contract, perfectly executed, the universe in which the contract exists is bounded by the parties.  A contract without dispute is bounded only by itself.

Only in the matter of a dispute does a contract reach outside the legal universe which it has created, to appeal to a forum of some sort beyond the scope of the parties themselves.  The meeting of the parties has not achieved consensus.

When sovereign states dispute a treaty, they either resolve it by negotiation, or by other methods of friction between countries.  Clausewicz states that that war is an extension of diplomacy; he is quite right.  An unsettled treaty is a point of contention, and the severity of the dispute will be mirrored in the severity of the conflict demonstrated.

The Forums of Contract

Contracts have a forum, or venue, to which they can petition for analysis of the particular matter(s) of the contract that are in dispute.  It is within the choice of the forum to which the appeal is offered, whether to take up the controversy under the nature of jurisdiction by subject and location.

Indifference of forums

Forums are intrinsically by default indifferent to everything, except a claim for consideration which may be within the forum’s scope of authority.  Courts do not see, in a sense, all contracts, or even those being disputed; they only attend to matters which are called to their attention.  They merit the use of a splendid English word, clearly hijacked from the Spanish – pococurante.

Behavior of forums

Each entity which esteems itself to be a forum for contract adjudication has certain internal regulations by which it operates.  In the United States civil authority, the law of obligations, which is an aspect of civil jurisprudence, extends its legitimacy to all matters, such as contracts and torts, for interpretation of disputes according to this settled law.  Catholic canon law attends to disputes under the authority of matters of Catholicism.  There should be no confusion between the two forums.  A mis-directed appeal to one or the other forum would be met with polite indifference, and a suggestion for redirection, as would a question about Sharia law directed to either.

Finality of Decision

All forums of every sort, by their own common sense, develop a declaration of finality to a decision, at which point the court cloaks the matter with its own indifference, in the manner in which it is indifferent to disputes outside its area of interest.  Res adjudicatum, dismissal with prejudice, and such decisions, indicate that a court will not take up a matter again except under the most radical circumstances, where there is clear evidence that the decision may have committed an injustice.

Types of Contract

So far, the deliberation has been on the truly private contract – a contract which, if properly maintained and executed, is outside the scope of interest of any third party.  There are also jural contracts – boilerplate contracts, in a sense – which involve standard social contracts to which individuals may wish to engage with the minimum of bother, such as marriage.  Parties need not construct marriage contracts, with contingent prenuptial agreements, unless they choose – they may simply marry, if they are ready, willing and able to do so.

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