If you have a quick look at President-Elect Donald Trump’s approach – as a businessperson – to legal obligations, you may see something interesting about his approach to politics.
Trump sees himself as a master of the “art of the deal”.
And he certainly has an interesting and artful approach to contract law.
By way of background, classical contract law is about the sanctity of the agreement: the bargain.
All parties to a contract agree in advance what to do throughout the period of the contract regarding foreseeable risks. This means that there is a lot of “front-end” thought put into a contract: more time working things out in advance, the fewer problems later.
The merit of this approach is that everybody knows where they stand, as and when any foreseeable problem occurs. All appropriate risks are allocated, and so on.
The original bargain is often just the starting point.
The original exchange of promises is a mere opening position: enough to get him over the threshold, nothing more.
The “real” deals – the “real” business – come later.
Sometimes this means “stiffing” the counterparty. Sometimes it means being over-generous.
And sometimes, it may be said, such a cyncial approach is good business sense: you can often force a “better deal” – for yourself.
All is fair, some would say, in commercial law between businesses: after all, it is law for grown-ups.
The problem is that nobody, especially third parties, knows where they are. No reliance can be placed on the original promises. The benefits of the artful approach are one-sided.
The extent to which this commercial approach is transferable to the fulfillment of election promises is anyone’s guess.