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Contracts In Close Personal Relationships

As a general rule, the State sanctions private arrangements between contractual partners by recognizing them as enforceable in the courts. The creditor (promisee) of any contractual obligation is entitled to the execution (performance) of a duly contracted obligation. If the debtor (promisor) refuses or is unable to perform as agreed, the creditor may sue in court for specific performance or at least for damages [35].

A contract to establish a framework for patrimonial relations between people in close personal relationships will generally be enforceable. This is why courts can give effect to legal rules set out in marriage contracts [36]. Patrimonial provisions in any consensual union or cohabitation contract will be enforceable as well [37]. In theory, based on the general principles of the law of obligations, courts will readily give full effect to those provisions.
As I have attempted to show in the preceding section, it could be beneficial for a close personal relationship contract to contain extra patrimonial provisions specifying the relational aspects of the joint living project. It is legitimate to doubt whether such agreements would be sanctionable. If one partner does something that is inconsistent with the other's expectations as expressed in the contract, a court faced with the dispute cannot be counted on to compel that partner to perform his or her obligation [38]. Given the particularly intimate issues involved, the non-economic organization of close relationships is not traditionally regarded as something that is legally enforceable. To cite Bruno Oppetit:

[TRANSLATION] … certain human relations, by their very nature or by the types of protagonists or the bonds between them, seem as though they should be completely outside the law, which would explain why the commitments made as part of those relations are unenforceable duties of conscience [39].

In my opinion, the issue of whether extra patrimonial provisions in close personal relationship contracts will be enforceable is beside the point. The provisions in which the partners define the relational dimensions of their joint project would not be intended for judicial sanction. In reality, this component of the contract would be designed to establish a framework for private ordering that can guide the interactions between the partners and ultimately consolidate the stability of their relationship. If one of the partners sought to enforce this framework in court in the context of a dispute suggesting that the exchanges will cease [40], his actions would be confirming that the objective of the relational component has not been achieved. In fact, the normativity of the relational component would unfold in a sphere apart from state law and would not partake of the internal logic of state law.

Admittedly, such a perspective would require us to broaden the generally held conception of law and contractual normativity. Classical doctrine might limit the law to state-enacted rules and bodies created to ensure that those rules are respected, but another doctrine conceives of law as a social phenomenon over which the state has no monopoly. Professor Pierre Noreau writes:

[TRANSLATION] Normally [law] is limited to norms created by legislatures, and does not encompass arrangements and models of conduct even though we are constantly creating them in our relations with others. This is obviously a more sociological than legal conception of law. But we should recognize that the spaces of individual living have grown and that our behaviour is largely defined in the context of behavioural guideposts that we establish ourselves in our day-to-day dealings [41].

This statement implicitly refers to legal pluralism [42], a theoretical conception that law is not a homogeneous whole and that, in addition to the state system, it encompasses various subsidiary orders, including contracts that are independent normative instruments. In other words, a contract can be seen as a true source of law, regardless of whether its provisions are enforceable. It is not state law - and indeed the state will probably not take notice of it - rather, is the law of the parties.

As we have seen, the relational and patrimonial components of close personal relationship do not have a common normative perspective. The relational component lies within the sphere of moral obligations and is binding only on the conscience [43]. Essentially, the partners will live up to the expectations set out in the relational component because they want to preserve their relationship, not because they fear court intervention [44].

Admittedly, some people may derive little comfort from moral obligations, especially where intentionally short-lived contractual relations are involved. Logically, however, moral obligations should hold more weight in close personal relationships of indefinite duration [45].

In fact, Professor Macneil's contract theory acknowledges the importance of contractual solidarity, a norm that causes parties to a relational exchange naturally to adopt behaviour that helps maintain their relationship [46]. Professors E.S. and R.E. Scott write that this norm is present in spousal relationships:

The intimate character of the relationship and the iterated nature of the interactions will influence the spouses to develop reciprocal patterns of cooperation over time. The pervasive social norm of reciprocity is particularly relevant to long-term interactions, offering a particularly stable foundation for an evolving pattern of conditional cooperation [47].

Moreover, certain scholars believe that contractual formalism tends to consolidate the regulating scope of moral obligations. Since the obligation is committee to writing in a document symbolically associated with the notion of pacta sunt servanda, contractual debtors will tend more clearly to express their intent to be bound formally and honour their word and their signature [48].

This is one of the functions of contractual formalism discussed by American legal scholar Lon L. Fuller. In Fuller's view, formalism renders agreements in the appropriate terms ("channelling function") and provides evidence of the existence of the agreement if it is in doubt ("evidentiary function."), but it also focuses the partners' minds on the solemnity of their agreement and therefore crystallizes their feeling that they are obligated by it ("cautionary function.") [49]

As we have seen, contracts in close personal relationships are a convergence point for two different normative perspectives. They do not serve state normativity alone; rather, they unfold in an internormative space. They are not designed to respond to the legislator's concerns alone; rather, they are designed to respond to all needs for ordering that the partners will potentially express, regardless of the normative level of those needs.