How (not) to do things with a contract

Abstract

Legal theory has strong accounts of why defective legal acts fail. It has a weaker account of why legal systems respond to that failure in categorically different ways. Speech act theory addresses the first question, and legal theorists have drawn on it because it converges with Hart’s insight that nullity is not a sanction. But these frameworks share a structural limitation: binary outcomes. Civil law distinguishes categories of invalidity—nonexistence, absolute nullity, relative nullity—each with distinct procedural consequences. This article argues that speech act theory cannot capture these categories. First, it shows both classical and cooperative accounts produce Boolean outcomes. Second, it demonstrates that civil law assigns defects to discrete categories. Third, it establishes that this assignment tracks normative judgments about protected values, not structural features. Fourth, it responds to objections, including graded speech acts. Even non-binary frameworks cannot supply the evaluative judgments the law’s taxonomy of invalidity requires.