1. Introduction
In my response to Professor Jonathan Herring’s thought-provoking paper on ‘Criminal Law and the Relational Self: Rethinking Conceptions of Harm and Responsibility in an Interdependent World’, I would like to follow the private law pathway, and more particularly, focus on the contract law perspective.
I started this exercise by reflecting on the following lines explaining the theories of individualised self and relational self used by Professor Herring:
‘Under the model of the individualised self we imagine each person as a separate self, with their own interests and right. (…) In a legal dispute these are often weighed up against the interests and rights of another self. (…) This understanding of the self is often premised on what is seen as important to people and how they flourish: their freedom; protection of their bodily integrity; and autonomy.’1
and
‘At the heart of the concept of the relational self is the argument that the self emerges out of our relationships with others.2 The self is constituted by and through our personal connections. (…) By relationships here I meant to include communal and social forces which provide the background for our relationships. (…) Under the relational model the aim of the law is to promote caring relationships and to protect people from abusive relationship. In determining what constitutes harm it focuses on the impact on our relational beings.’3
2. Freedom to Contract and the Self Perspective
From a contract law perspective, the individuality, the autonomy of the self, makes me think of the core principle of contract law – party autonomy. One has the freedom to enter or not into contractual relations. ‘[A] right holder can do as he will’,4 responds to one’s own interests and right to enter into a contractual relationship or decide against it. The liberalism of the eighteenth and nineteenth centuries put the highest value on the autonomy of the individual. A person must be free to choose the conditions of one’s life as one wishes and be able to pursue the chosen goals, provided that by doing so the person does not infringe other people’s similar freedoms.5
From an individualistic perspective, this means that the person has the capacity and volition to make the decision of entering into a contractual relation. Thus, individuals must be free to decide, for example, to agree on the purchase of goods or services they want or need for their own life or professional activity, and on what terms they want to contract.6 In this process, the State must respect the freedom and autonomy of individuals as much as possible unless the concluded contract breaches mandatory legal norms.
While according to the well-known freedom of contract principle, each person is free to decide on whether to enter into a contractual relation or not, once this decision is made, the relationship that is created leads to a restriction of the individual autonomy of both parties involved. The individual autonomy is, from this point on, a relational interaction. What appears at first as individual autonomy is taking the form of relational autonomy. In deciding to conclude a contractual agreement, even when looking to ‘maximise personal gain’, each of the parties finds itself in a relationship reality with ‘caring responsibilities’,7 even when these are limited to the simple execution of the undertaken contractual duties.
Additionally, the autonomy of the self in contractual relations has numerous limitations. The law establishes some checks and balances on parties’ own autonomy to contract in order to protect weaker parties or the public interest. These limitations have to do with the way the law is looking to protect individuals from deficiencies, for example, with regard to the free expression of one’s will when misleading information or practices are used to induce a party to enter into a contract (e.g. misrepresentation, fraud), or from being subject to illegal or prohibited relations (e.g. trafficking, distorting markets). Hence, the freedom to contract is not only about following the idea of autonomy of the self, but also about respecting contractual freedom while observing the values of the community, the societal interests to protect, or dissuade certain types of contractual relations or behaviours that are deemed undesirable.
Pursuing a relational interpretation of the principle of freedom to contract is not new. According to the Study Group on Social Justice in European Private Law, the concept of contract should evolve from the position that favours individual autonomy towards one that favours a relational approach. The concept of autonomy should be reformulated and turned into a legal relationship based on obligations of cooperation, solidarity, and fairness.8 Thus, a relationship reality that is in line with the ‘caring responsibilities’9 of relational self.
Further, the choice theory of contract developed by Hanoch Dagan, Michael Heller and Avihay Dorfman, speaks of the pursuance of ‘community’10 by the parties as the other reason for the parties to contract. Contractual autonomy from a relational perspective means that parties can relate in a contract as equals, either by assuming co-authorship of determining or influencing the determination of the terms of the interaction, or by satisfying reasonable expectations.11 Contracts are not only relevant for the individual as a separate self, as an isolated entity from the rest of the society the person lives in, but also for the society the individual is part of. The freedom to contract is exercised in relation to and in interaction with other individuals.
Another theoretical framework that puts the relational perspective above individualistic approaches is the relational theory of contract. This defines contractual relations as ‘exchange relations’12 among persons who have exchanged, are exchanging, or are expected to be involved in exchange relations and who rely upon a created relationship resulting from an exchange of promises among themselves.13 For this theory, the freedom to contract is not an individualistic element of a single interaction. Contractual relationships are meant to go beyond a ‘one-off exchange and performance of mutual promises’.14 In enforcing such contractual relations, account is also given to factors such as the social, cultural, and financial contexts in which the parties bargained, and the surrounding circumstances, in order to have a proper understanding of the relationship created and, thus, give effect to the parties’ intentions.
In both these approaches, the autonomy of the parties to freely decide to enter into a contract is appreciated together with and in relation to the other party/parties, the surrounding society and environment, and the importance of societal values and their protection.
3. Pursuing Contractual Relations and Seeking to Prevent Harm
How can individual interests of contractual autonomy be best balanced with the multitude of relationships society requires, in which autonomy, cooperation, public interests, and fairness need to be balanced against each other to enable the entry into and enjoyment of care relations and prevent damages from happening?
An agreement voluntarily entered into by the parties should be respected and complied with, and, if required, given effect to by the courts. In principle, the court’s role in assessing the validity of the contract should not go beyond ensuring that the procedural requirements for entry into a contract have been met; the contract was freely entered into and it is an agreement in which the parties based on the written terms understand or have a clear representation of the duties they agreed to or the consequences the agreement will have for the person’s patrimony, life, and/or activities. Any action that would prevent parties from freely entering into a contractual relation or having correct information about the contract or the consequences of such relationships should lead to measures seeking to prevent harm. This is in line with the carrying responsibilities of a relational self pursuit of contractual relations.
Given the obligation of fairness used in many legal systems or functional equivalents in legal systems that do not follow a general principle of good faith in contractual dealings,15 contracts can be rendered invalid if the parties unlawfully infringe the interests of third parties or harm the interests of the general public or fundamental societal values. Actions taking advantage of vulnerability and causing damage to a person with whom a contract was concluded can be protected not only by reimbursing the undue gains or by awarding damages, but also through actions that can annul or terminate the contractual relation as a whole or only the abusive clauses. Such actions to prevent and/or mitigate harm limit contractual autonomy in order to pursue societal interest and community interests. This reinforces the approach towards ‘caring relationships and to protect people from abusive relationship’16 above the individual self-gain and enjoyment of the party taking advantage of others’ vulnerabilities. Relief from unfair contractual terms or from contracts concluded with a person who suffers from mental impairment, ignorance, or inability to understand the language used in the agreement, relies on a relation of care towards each other. It is not an individual self understanding of the contractual freedom.
In a caring contractual relationship, we can also think of certain categories of parties that find themselves in a weaker position, such as employees, tenants, or consumers. Society needs to protect them from the outset. Hence, in contractual arrangements involving these types of parties, contract law uses mandatory provisions to grant these parties rights that are non-negotiable, and cannot be set aside by arrangements parties could make by relying on the principle of freedom to contract and party autonomy.
In a society where law aims to promote caring relationships, and as Professor Herring mentions in his paper, to protect people from abusive relationships, certain unwanted behaviours, such as seeking to take advantage of a counterparty’s vulnerability, limited knowledge and/or violating a trust relationship to induce a party into a contract or make subject to unfair terms, can have broader social consequences. This can explain the need to have restrictions in place in those areas where contractual relationships require a rebalancing of forces between the parties beyond individual interests. The relational contract theory considers the relational context. It takes into account the parties’ circumstances, the businesses, the relationship, and the trust.17
A contract concluded by taking advantage of a party’s vulnerability, weaker position, or through fraud or undue influence will be vitiated. It will not actually be representative of the objectives the person subject to such abusive practices was pursuing through their freedom to contract. An agreement that is entered into in such circumstances will be null and void. The duty of care and protection the State has towards individuals and society has to prevail over individual actions and agreements that violate public interests, lead to unfair practices, and, ultimately, harm relations and the community.
4. Addressing Harm through Damages in Contractual Relations
According to Feinman, the relational contract theory ‘has the potential to give more prominence to the sources of inequality in contracting and to provide more robust remedies’.18 Based on this theory, contract norms such as reciprocity and power restraint provide a strong base for addressing and exposing inequality and unfairness.19
When contractual agreements are not performed or performance is not carried out in accordance with the contractual agreements by one party, the award of damages can remedy for the harm suffered by the other party. Damages are an important part of contract law when a party fails to perform its obligations. The party is liable for damages to the other party and must pay an amount of money that would bring the other party into the same position it would have been in if the contract had been fulfilled. It is based on the idea that the party who has given a binding contractual promise has raised an expectation in the other party that the promise will be met. A link of causation is created between the breach of the contract and the responsibility for the harm inflicted. The harm caused by the breach can consist of economic loss, but also a loss of a non-pecuniary nature.
Compensation for damages in view of the relational perspective on the principle of the freedom to contract follows some limitations based on the type of damages incurred. Liability for expectation interest would make the contractual debtor liable to pay damages to the other party in an amount that would bring this other party into the same position it would have had if the contractual duties had been properly fulfilled or performed.20 For example, if a buyer does not receive the goods it ordered and has to purchase the same goods from a third party at a higher cost, the advantages and disadvantages of the two transactions must be offset against each other. The buyer would be able to claim damages for the difference in price between the two transactions that resulted in a loss for the buyer.21 Expectation interest also includes the disadvantages that a party to the contract suffers if the party made arrangements after concluding the contract in view of the conviction that the contract will be performed. For example, if the organisers of a music festival advertise the participation of DJ Afrojack and DJ Afrojack decides not to participate on the day of the music festival because he wants to go on holiday, the organisers of the music festival can ask damages for the loss of profit, but also for the lost expenses – the costs of advertising for the participation of DJ Afrojack that would be frustrated. These other damages are known as damages for reliance interest. They seek to put the party – the organisers – in the position they would have been if the arrangements had not been made and they would not have suffered the related loss.22 The value of the damages is limited to the lost profit and the costs incurred in relation to the contract that was not performed or to defective performance.
It can happen that the creditor is also partly responsible for the registered damage, for failing to mitigate the level of damage or even preventing it from occurring. Contract law requires the creditor (the promisee) to mitigate its own damages through self-help if the damage could be easily avoided or in order to prevent damage from accumulating. A shared responsibility requires a division of the damages due. For example, Article 6:101(1) of the Dutch Civil Code states that the damage has to be divided between the parties when the harm/the damage is caused ‘as well by circumstances which are attributable to the injured person himself’.23 This can be expressly established by law, such as in the Dutch Civil Code, or resulting from the courts’ case law in a way that reminds us of the discussion of the English case law cited by Professor Herring regarding causation and responsibility.24 The idea in contract law is to have a division of responsibility that is based on the proportion of the damage ‘attributable’ to the parties.25 Some legal systems also attempt to distinguish cases where the contributory responsibility of the injured party relates to the origination of the damage, or where the injured party failed to mitigate the damage or the debtor did not have a strict liability to achieve the promised results and is also liable to the creditor in tort.26 In such cases, the damages awarded for the harmful consequences suffered can be reduced for the contributory liability in English law.27 For this discussion, we do not want to focus on the amount of damage, but on the relational aspect of the duties. This situation underlines a relational perspective and emphasises the importance of one’s behaviour. Causation of contractual damage can lie at the feet of an individual’s will and autonomy, but the effects can be enhanced or prevented by the other party’s prompt behaviour. A relationship of care between the parties can make a difference in the consequences felt by individuals and society as a whole.
Further, according to Article 7:38 BW (Dutch Civil Code), the debtor can be held liable to pay a higher compensation if more damages had been suffered. For example, the debtor can be required to pay damages not only in relation to the contractual duties not performed but also for the creditor’s direct loss of profit due to the non-performance by the debtor.28 While in civil systems such as the Dutch one, the judges must be ‘certain’ that the creditor would have hypothetically achieved that profit in case of performance of the contract, in English law, the law is more flexible; it is sufficient that the judge finds it ‘more likely than not’ that there would have been a profit for the creditor to entitle the party to loss of profit damages.29
There may also be liability for the gain the debtor made for non-performance of the contract, although the creditor did not suffer loss. For example, if an employee carries out activities that are prohibited by his contract of employment and this leads to financial gains, these must be disgorged. In Attorney-General v. Blake, the defendant, a British Secret Intelligence Service agent, had been given an undertaking by his employer – the British Crown – not to divulge any official information gained as a result of his employment. Years later, the employee wrote a successful autobiography that made some of the information related to his work public. The House of Lords upheld the Crown’s application for an account of the author’s profit even if the Crown had not suffered any tangible loss due to Blake’s breach of contract. The reason for the court to uphold the claim for ‘restitutionary damages’ was that the defendant was deemed a trustee of the information he received during the course of his employment and, therefore, had to hand over any profit made from a breach of this fiduciary trust. The other ground of the decision was that the Crown had a legitimate interest in ensuring that information obtained during intelligence work remained secret, and secret service employees should not have a financial incentive to publish such information and ignore contractual obligations.30 This type of damage in my example carry also a significant societal interest protection function, dissuading certain actions that can result in dangers and harm for society at large.
Besides economic loss incurred because of lack of performance or defective performance, or gain made from breach of contract, damages can also be claimed for intangible loss in contract law. Liability can also involve intangible losses that are dependent on the sentiments, attitudes, feelings, and sensibility of the person affected, leading the person to experience a loss of happiness, satisfaction, or comfort, or no longer being able to experience them as expected. In English law, this type of intangible damage is not easy to claim in any situation, but has been recognised in certain circumstances of mental stress. These were related to: (a) holiday arrangements that turned out so terribly that the client was deeply disappointed,31 (b) women asking for protection arrangements from her lawyer against harassment by another person32 or making sure a child in her custody is not kidnapped by her husband33 but the lawyer’s mistakes were instrumental in allowing the situations to happen, or (c) in real estate broker contracts for finding a property that would allow the client to enjoy a feeling of calmness but the client finds himself in a noisy property near the Gatwick Airport.34
Damages for intangible loss are overall more difficult to claim. Some legal orders are reluctant to allow monetary compensation for such immaterial disadvantages. This is because it is difficult to determine the level of monetary compensation: the weight placed on these disadvantages differs from person to person; they are subjective. And there is no ‘market’ on which supply and demand result in a general ‘price’ paid for the intangible losses or gains.35 It can also be argued that allowing monetary compensation for intangible loss will give an incentive for people to ‘fake disadvantages and cry crocodile tears before the courts’36 in order to give a foundation for their claim of intangible loss. In such cases, it is considered societally undesirable to encourage such actions.
As this section shows, a breach of contractual duty leads to the award of specifically quantified damages in compensation for certain losses, being these economic ones, or intangible ones. In such evaluations of damages, courts consider not only the contractual terms and conditions and the principle of party autonomy, but also the relational element, societal interests, fairness, and public policy, to prevent the incentivisation of harmful behaviours or inappropriate performances.
5. Conclusion
In response to Professor Herring’s exploration of the relational self in criminal law, this paper argues that the principle of party autonomy in contract law reveals an inherently relational nature of the self.
The most fundamental principle of contract law – freedom of contract – cannot be fully understood through purely individualistic lenses. Once parties enter into a contractual relationship, their autonomy becomes necessarily relational. The act of contracting transforms individual freedom into a frame of mutual obligations, expectations, and caring responsibilities that extend beyond mere self-interest maximisation. This transformation reflects the reality that we do not exist as isolated legal subjects but as interdependent beings whose choices and actions inevitably affect others, and society requires us to show care towards.
The mandatory rules protecting vulnerable parties such as consumers and employees prevent vitiating facts such as misrepresentation, fraud, and undue influence to lead to unbalanced contractual relations. Furthermore, the principles of fairness and good faith in contractual dealings all reflect a recognition that contractual relationships occur within broader social contexts that demand legal protection. These protective rules are not divergences from contractual freedom but essential components of a legal framework designed to foster caring relationships and prevent exploitation, while recognising parties’ autonomy to enter into contractual relations.
Further, damages in contract go beyond compensating for incurred loss – expectation and reliance interests – and carry out a social function of deterring parties from harmful activities not only for individuals, but also for the wider community, through restitutionary damages. The recognition of damages for intangible losses reflects an acknowledgement that contractual breaches can harm not only economic interests but also human dignity, emotional well-being, and legitimate expectations of care and consideration.
The challenge ahead is not to abandon the valuable protections that individual autonomy provides, but to integrate these protections within a richer understanding of the self as constituted through relationships. In contract law, as in criminal law, embracing a relational perspective means recognising that promoting human relations is not only protecting individual freedom but also fostering caring relationships. This approach has the potential to make contract law more responsive to both individual needs and collective wellbeing, and ultimately supporting a legal framework that better reflects the interdependent reality of human life.
Notes
[1] Jonathan Herring, ‘Criminal Law and the Relational Self: Rethinking Conceptions of Harm and Responsibility in an Interdependent World’, Tilburg Law Review, Montesquieu Lecture, 2025.
[2] Andrew Fagan (2024) The Subject of Human Rights: From the Unencumbered Self to the Relational Self, Nordic Journal of Human Rights, 42:2, 215–233.
[4] James Gordley, ‘Freedom of Contract’, Mindy Chen-Wishart and Prince Saprai (eds.), Research Handbook on the Philosophy of Contract Law, Edward Elgar Publishing 2025, 150.
[5] Hein Kötz, European Contract Law, Oxford University Press, 2nd Edition, 2017, 6.
[6] Hannes Unberath, ‘Freedom of Contract’ in Max Planck Encyclopedia (2012) 751; Hein Kotz, European Contract Law, 2nd Edition, Chapter 2.
[8] For example, see Study Group on Social Justice in European Private Law (ed), ‘Social Justice in European Law: A Manifesto’ (2004) 10 European Law Journal 653.
[11] Hanoch Dagan and Avihay Dorfman, ‘Justice for Contracts’, 67 American Journal of Jurisprudence 2022(1), 1–32 (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3847845).
[12] Ian Macneil, ‘Relational Contract Theory: Challenges and Queries’, Northwest University Law Review 94 (2000), 877.
[13] Zoe Gournari, ‘Developing a Relational Law of Contracts: Striking a Balance between Abstractions and Contextualism’, Legal Studies 41(2021), p. 179, doi:10/1017/lst.2020.23.
[15] In English law, there is no general principle of good faith, but for example, unfair contractual terms are tested through the ‘fairness and reasonableness’ test. John Cartwright, Contract Law. An Introduction to the English Law of Contract for the Civil Lawyer, Hart Bloomsbury 2021, 64–67.
[17] Jay M. Feinman, ‘Recapturing Relational Contract Theory’, Rutgers Law School Research Paper (forthcoming), 45, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5059274.
[20] See for example Robinson v Harman [1848] 1 Ex. 850, 855 in English law.
[22] In English law, see the example of McRae v. Commonwealth Disposals Commission [1951] 84 CLR 377 that conserved a transaction between seller and a salvage company for a shipwreck that did not exist. The court recognized the salvage company’s claim for damages for the expenses incurred in fitting out a ship for the preparation of the salvage operations.
[24] See, for example, the discussion regarding the Wallace case, [2018] EWCA Crim 690.
[26] The basic rule establishing the splitting of damages also applies if the injured party has failed to mitigate the level of damages. See Hein Kotz (n 5), 262–263.
[27] See, for example, British Westinghouse Co. v. Underground Electric Railways Co. of London Ltd. [1912] AC 673, 689.
[29] See on the balance of probabilities Allied Maples Group Ltd. v. Simmons & Simmons [1995] 1 WLR 1602 (CA).
[30] Attorney General v. Blake [2001] 1 AC 268.
[31] Jarvis v. Swans Tours Ltd. [1973] 1 All ER 71 (CA).
[32] Heywood v. Wellers [1976] QB 446.
[33] Hamilton Jones v. David & Snape [2004] 1 All ER 657.
[34] Farley v. Skinner, [2002] 2 AC 732.
Competing Interests
The author has no competing interests to declare.