The Collective Body of Contracting Parties

The contract, real or ideal, punctual or to be renewed indefinitely, private or social, is conceived as the normatively privileged means for two individuals to institute a collective entity which respects the freedom of contractors. The aim of the article is to take up again the analysis of this voluntarist institution of the collective starting from the notion of contract. However, it is tempting to regard the contract as an exchange of unilateral promises, that is, as an aggregation of unconditional obligations that each of the contracting party owes to the other. Such a conception, though, contradicts a property that is wildly recognized in the contract: the obligations the contract imposes are conditional ;if one of the parties does not fulfill its obligations, the other is relieved of those obligations which he contracted. How should we conceive of this mutual dependence of obligations? The author shows that the model of “crossing promises” must give way to the model of the “collective body”: acts of promise are the two sides of a single operation. It is shown that the unity of these operations presupposes that individuals think of themselves as a collective body and that the condition for them to think of themselves as such is their participation in a common institution, which is precisely that of the contract, so that each particular contract presupposes the collective entity, rather than it engenders it.