South Carolina Law Review Volume 48 Issue 2 Article 4 Winter 1997 The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment Larry A. DiMatteo University of Miami Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S. C. L. Rev. 293 (1997). This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. DiMatteo: The Counterpoise of Contracts: The Reasonable Person Standard and THE COUNTERPOISE OF CONTRACTS: THE REASONABLE PERSON STANDARD AND THE SUBJECTIVITY OF JUDGMENT Larry A. DiMatteo" "[T]he law that is in us by nature is nothing else than the reasoning creature's sharing in the eternal law." Saint Thomas Aquinas** I. INTRODUCTION ......................... ...... 294 A. The Twentieth Century Revolution: Subjectivism Versus Objectivism ..................... ...... 295 B. The Domain of the External ............... ...... 297 C. Symmetry of Form and Cardozo's Objective Change. ...... 299 D. The Reasonable Person Standard ............ ...... 301 E. The Reasonable Person's PredispositionTowards Intentionality ........................ ...... 303 II. THE ROOTS OF THE REASONABLE PERSON ......... ...... 305 A. The Religious Reasonable Person ............ ...... 305 B. The PhilosophicalReasonable Person ......... ...... 309 C. Psychoanalyzing the Reasonable Person ........ ...... 314 D. The JudicialMind and the Reasonable Person .... ...... 316 Im. FABRICATING THE REASONABLE PERSON .......... ...... 317 A. The Partiesand the Totality of the Circumstances .. ...... 318 An Aside: The Main Purpose Doctrine ...... ...... 324 B. Custom and Trade Usage: The Reasonable Person Is a Working Person .................... ...... 325 1. A Reason to Know: The Restatement (Second) of Contracts and the Reasonable Person ....... ...... 327 2. The Reasonable Person as a Precursor ...... ...... 328 3. Llewellyn 's Double-BarreledObjectivity ...... ...... 329 4. The Language of the Reasonable Person...... ...... 331 C. From Who's PerspectiveDoes the Reasonable Person View the ContractualLandscape? ............ ...... 332 1. The Reasonable Person as Promisee ........ ...... 333 2. The Reasonable Person as Promisor ........ ...... 333 * Assistant Professor of Business Law, University of Miami; B.A./B.A., State University of New York at Buffalo, 1979; J.D., The Cornell Law School, 1982. ** Thomas Aquinas, Summa Theologiae, in THOMAS AQUINAS SELECTED PHILOSOPHICAL WRITINGS 419 (Timothy McDermott trans., 1993) (emphasis added). Published by Scholar Commons, 2020 1 South Carolina Law Review, Vol. 48, Iss. 2 [2020], Art. 4 294 SOUTH CAROLINA LAW REVIEW [Vol. 48:293 3. The Reasonable Person as a Third-Party ........... 334 IV. IMPLEMENTING THE REASONABLE PERSON STANDARD ........ 336 A. The Manipulation of the Reasonable Person ............ 336 1. The Reasonable Person and the Consumer Form Contract ........................... 338 2. The RelationalReasonable Person ............... 341 B. Reliance Theory and the Reasonable Person ............ 342 V. THE SUBJECTwITY OF JUDGMENT .................... 343 A. Gardner, Holmes, and Llewellyn on Judicial Constraints .... 345 B. The Subjectivity of Judgment ..................... 347 1. Discretion as the Touchstone of Subjectivity .......... 349 2. The Reasonable Person as Synthesis .............. 350 VI. THE REASONABLE PERSON AND CONTRACT LAW'S INNER EXPERIENCE ............................. 353 VII. SUMMA ................................... 355 I. INTRODUCTION Who is this all-knowing arbiter of reasonableness known as the reasonable person? From what organic and metaphysical antecedents has this person evolved? Is the reasonable person one and the same with Kant's rational being, or tort's reasonably prudent man2 or Lord Denning's officious bystander?3 How do courts go about creating this contractual mystic? How 1. See generally IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS (Lewis Beck trans., 1969) (highlighting his views of the rational being). 2. See generally WiLUAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS §§ 32-33, at 149-80 (4th ed. 1971) (detailing the attributes and capacities of the reasonably prudent man standard and how courts should apply it). Professor Eisenberg describes the difference between the reasonable man of tort and the reasonable person of contract as one of perception. The reasonable person perceives the likelihood of certain consequences stemming from the actions in question. In tort, the reasonable person must perceive only a low degree of probability to hold a person accountable for wrongdoing. In contract, a higher degree of probability is necessary. "In the case of a breach of contract, the court has to consider whether the conse- quences were of such a kind that a reasonable man, at the time of making the contract, would contemplate them as being of a very substantial degree of probability In the case of a tort, the court has to consider whether the consequences were of such a kind that a reasonable man, at the time of the tort committed, would foresee them as being of a much lower degree of probability." Melvin Aron Eisenberg, The Principleof Hadley v. Baxendale, 80 CAL. L. REv. 563, 580 n.48 (1992) (quoting H. Parsons Livestock Ltd. v. Uttley Ingham & Co., [1978] Q.B. 791 (C.A. 1977) (opinion of Lord Denning, M.R.)). The concept of the reasonable person can be seen elsewhere in the law. See, e.g., Robert A. Levy, Note, The PrudentInvestor Rule: Theories and Evidence, 1 GEO. MASON L. REV. 1 (1994). 3. See generally LORD DENNING, THE DISCIPLINE OF LAW (1979) (criticizing the strict https://scholarcommons.sc.edu/sclr/vol48/iss2/4 2 DiMatteo: The Counterpoise of Contracts: The Reasonable Person Standard and 1997] THE COUNTERPOISE OF CONTRACTS can the use of the objective reasonable person be reconciled with the subjec- tive, discretionary nature of judicial decision-making? Cardozo's notion of judge as creator,' Liewellyn's reference to the leeways of the law, s and Roscoe Pound's notion of judicial intuition6 all smack of a process ripe with the fruits of subjectivity. The advancement of the objective theory's reasonable person must pass through this subjective filter of the judicial mind. How can the objective theory better incorporate the fact that subjective elements play an inherently important role in the interpretation of objective reality? These questions are addressed in this article. This article will first attempt to uncover the ancestral roots of contract law's reasonable person by analyzing three fields of study: theology, philosophy, and psychology. The next part will investigate the material utilized by the courts in constructing the ad hoc reasonable person. The focus will be upon use of custom, trade usage, and commercial practice as the genetic building blocks of the reasonable person. The final two parts will look to the role of subjectivity in the creation and the application of the reasonable person. Just how objective is the reasonable person given the reality of judicial discretion? A. The Twentieth Century Revolution: Subjectivism Versus Objectivism The rise of the reasonable person standard and the objective theory of contract during the twentieth century was not without ancestral roots. The use of formality to provide objective guidance for assessing contractual liability can be traced back to Roman times. Roman contract law was structured upon objective formality, not subjective agreement. "[C]ompletion of the proper formalities, rather than consent, was determinative." 7 Our Anglo-American tradition is filled with similar formality. Examples include the sealed instrument, livery of seisin, and the Statute of Frauds. The seeds of the reasonable person as applied to manifestations of intent are found in these historical formalities. The Roman stipulatio, the giving of sacramentum, and in Germanic law, the giving of a thing or aries, were objective means upon which contractual liability was affixed. 8 Durkheim has written that it was constructionists' rigid adherence to precedent). 4. BENJAMIN N. CARDozo, THE NATURE OF THE JUDICIAL PROCESS 103-04 (Yale Univ. Press 1965) (1921). 5. KARL LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (Paul Gerwitz ed. & Michael Ansaldi trans., 1989). 6. KENT GREENAWALT, LAW AND OBJECTrIVTY 205 (1992) (examining the notion of legal objectivity and its relation to judicial intuition). 7. David P. Doughty, Comment, ErrorRevisited: The LouisianaRevision ofError as a Vice of Consent in Contracting, 62 TUL. L. REv. 717, 718 (1988). 8. For a concise and clear description of these ancient rituals and practices see generally Published by Scholar Commons, 2020 3 South Carolina Law Review, Vol. 48, Iss. 2 [2020], Art. 4 SOUTH CAROLINA LAW REVIEW [Vol. 48:293 "these ceremonies that gave an objective character to the word and to the resolve of the promisor."' The notion of manifestation of intent can be seen as a modem substitute for these ancient rituals. Implicit in the notion of manifestation of intent is the need to measure and judge that manifestation. In order to fairly attribute legal consequences to a person's manifestations, a neutral, third party arbiter was needed. This fair-minded, all-knowing figure had to be available to judge