Non-Contractual Element in Contract Revisited

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  • 「契約における非契約的要素」再考
  • 「契約における非契約的要素」再考 : 有機的連帯における契約法の積極的役割
  • 「 ケイヤク ニ オケル ヒケイヤクテキ ヨウソ 」 サイコウ : ユウキテキ レンタイ ニ オケル ケイヤクホウ ノ セッキョクテキ ヤクワリ
  • Durkheimian Understanding on Regulatory Roles of Contract Law in Contractual Relationships
  • 有機的連帯における契約法の積極的役割

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Abstract

In Division of Labour in Society, Durkheim presented a concept of social integration as organic solidarity. In contrast to a community based on the conscience collective, this type of society gives room for the rise of social differentiation. As long as social integration remains intact as a whole, however, organic solidarity will not be the same as mere economic relationships among egoistic interests; a contractual relationship is not solely based on an agreement between parties. Talcott Parsons, an influential exponent of Durkheim, restated this criticism against economic views on contract as “non-contractual element in contract.”<br>What constitutes a “non-contractual element in contract”? Though this point is crucial for specifying the integrative mechanisms typical of organic solidarity, Durkheimian scholars have not yet reached a common understanding. Does this term refer to the conscience collective, the cult of the individual, non-rational foundations of society, or coercive forces derived from a society? I have come to the conclusion that it is a law of contract.<br>The element distinguishing a contractual relationship from a mere economic one is that respective rights and obligations between parties are stipulated by law. If the law did not consolidate cooperative relations in division of labour, organic solidarity would not remain stable. However, the role of contract law is not primarily limited to enforcement. Contract law also performs the function of keeping contractual relations harmonious. Agreements between parties alone do not render contracts legally valid. If an agreement does not satisfy the conditions required by law, it forfeits a legal binding force. Contract law actively intervenes in the contract making process.<br>Why does an agreement that meets legal criteria endorse organic solidarity? This is the key to understanding Durkheimian theoretical insights into the law. Durkheim reasoned that requirements defined by statute are in place to achieve balanced cooperation. If an agreement is deemed insufficient for peaceful coordination, it loses legal protection. This is the active regulatory force of contract law.

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