The discursive openings from Macneil, Macaulay and Collins should be seen as fundamental rather than as a supplement to a dilapidated legal theory. First of all, contracts should be seen as a particular form of communication – communication is not an aspect of contract. Rather, contracts represent a particular way to communicate among other ways, with their own form and logic.

Second, contracts cannot be presumed to be legalised exchanges. As Macaulay has already shown, contracts do not necessarily have to be legal, although this requires a systematic abolition of the law as a privileged point of observation for contracts.

Third, partnerships should not be seen as something extra-contractual. Rather, we have to inquire more specifically into the way in which the form of contract is put under pressure and how that specifically displaces the contract's character of communicative form.

This chapter includes a form analysis of contracts and provides the basis for the analysis in the next chapter of the specific partnership form of contracts. The analysis is based primarily on the works of Niklas Luhmann and Gunther Teubner, but is also inspired by Jacques Derrida.

This chapter therefore has a presentation of how contracts are observable as a form of communication in a systems-theoretical sense. They are no longer objects that we look at, but particular distinctions that we can use to observe a particular kind of communication. Contracts come to comprise a particular communicative and expectation-forming perspective on the world. What does the world look like when observed through the lens of a contract? That is, how is the form ‘contract’ defined and how does that make possible and impossible respectively certain communicative formations of expectation? What we are looking for is the omnipresent communicative unity of contracts.

Form of contracts

Building on Niklas Luhmann, the proposition is to view contracts as a form of communication representing the unity of the difference of obligation and freedom. This form can be formalised as shown in Figure 5.1.

Luhmann proposes this view of a contract as the unity of obligation and freedom (Luhmann, 1981, p 249). A contract ties the freedom of the communication parties to obligation so that there is no obligation outside the freedom of the parties to limit their own freedom.