Contractarians view the corporation as a nexus of contracts, constituted by the express or implied consent of each party to or contracting with it. Strong-form contractarianism takes this claim literally and holds that a corporation can be created and sustained by contract alone, thanks notably to the courts’ supportive gap-filling role. We argue that this view is undermined by the way courts actually treat implied terms. While courts do attempt to fill gaps and hold parties to their bargains, they do not typically manufacture counterfactual consent by resorting to the hypothetical bargain logic of contractarianism. Even under the most flexible form of contract law, the common law contract, the capacity of courts to imply third-party obligations in multi-party contracts is highly limited. This makes the contractarian reliance on contract and the courts to construct the complex set of multi-party obligations that make up the corporate form implausible.

契约论者将公司视为合同的纽带，由各方明示或默示的同意或与之签约构成。强形式契约主义从字面上理解了这一主张，并认为公司可以仅通过合同来创建和维持，这尤其要归功于法院的支持性填补空白的作用。我们认为，法院实际对待默示条款的方式削弱了这种观点。虽然法院确实试图填补空白并让各方参与他们的讨价还价，但它们通常不会通过诉诸契约主义假设的讨价还价逻辑来制造反事实同意。即使在最灵活的合同法形式——普通法合同下，法院在多方合同中暗示第三方义务的能力也非常有限。