CONTRACT DESIGN AND THE STRUCTURE OF CONTRACTUAL INTENT

Modern contract law, is governed by a two-stage adjudicative regime-an inheritance of the centuries-old conflict between law and equity Under this regime, formal contract terms are treated as prima facie provisions that courts can override by invoking equitable doctrines so as to substantially "correct" the parties' contract by realigning it with their contractual intent This ex post judicial determination of the contractual obligation serves as a fallback mechanism for vindicating the parties' contractual intent whenever the formal contract terms fall short of achieving the parties' purposes. Honoring the contractual intent of the parties is thus the central objective of contract law Yet little scholarly attention has been given to the structure of contractual intent Courts naturally equate contractual intent with file parties' contractual objectives, which we call the "contractual ends" of their collaboration. But reaching agreement oil a shared objective is only the first step to designing an enforceable contract Thereafter, the parties must create the particular rights and duties that will serve as their "contractual means" for achieving their shared ends. The thests of this Article argues that the current regime of contract adjudication conflates ill c parties' contracrual means with their contractual ends In so doing, it reduces the range of contractual arrangements to which contract law gives effect, thereby potentially depriving commercially sophisticated parties of essential tools for contract design Sophisticated actors engage in ex ante determinations of their means of enforcement, choosing whether enforcement is to be either legal or relational and whether legal enforcement should rely oil either rides or standards Both theory and available evidence suggest that such parties would prefer a default rule that strictly enforces formal contract doctrine unless they, have expressly indicated their intent to delegate hindsight authority to a court By eliminating the risk that courts will erroneously infer the parties' preference for ex post judicial intervention, such a regime increases the rehability of formal contract terms and enhances the parties control over the content of their contract.