12: T
ORTS AS
R
ELATIONAL
C
ONTRACTS
Tim Kay
1
I. Introduction
It has been over forty years since Stewart Macaulay established that there
are many “non-contractual” elements to a business relationship that fall
outside of the traditional purview of the law of contracts
.
2
Yet, while crit-
icizing the traditional conception of the law as dealing only with discrete
transactions, the approach advocated by relational contract theorists — as
commentators, led by Macaulay and the late Ian Macneil, have become
known — has actually oscillated between two different positions.
Initially, relationalists argued simply that the traditional theory of discrete
contracts should be abandoned in favor of a new, relational theory. Yet
time passed and no such theory emerged. Subsequently, this absence was
taken largely as evidence that such a relational theory was either impossi-
ble to construct as a matter of principle, or else unnecessary as a matter
1
,
Stetson University College of Law, Gulfport, Florida. Earlier versions
of this paper were presented at the Jurisprudence Honors Seminar at Stetson in fall
2010, and at the 6
th
Annual International Conference on Contracts held at Stetson in
February 2011. I am grateful for the comments made by participants at both events,
and for those of my colleagues,
and
.
I am also indebted
to my research assistant, Ashley Taylor, for her assiduous work on the footnotes. Any
errors that remain are mine.
2 Stewart Macaulay,
Non-Contractual Relations in Business: A Preliminary Study
,
28
.
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