Contract law is (for me) the most exciting and satisfying area of law.
(Constitutional law and criminal law and media law are all very interesting in how they regulate real life activity, but only contract law is exhilarating. I once read Patrick Atiyah’s extraordinary Introduction to the Law of Contract in one go on a long plane journey, and the same author’s The Rise and Fall of Freedom of Contract is one of the best intellectual histories ever published.)
And so it is from a contract law perspective that this post looks at the question of whether Donald Trump, the businessman-turned-President, is “transactional” in his political approach.
This is certainly what many pundits are saying:



Are these pundits right?
Has this new conventional wisdom hit upon something?
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From a contract law – and contract lawyer’s – perspective, Trump is not “transactional”.
Indeed, he is the opposite of transactional: he is instead anti-transactional.
A transaction is a two-way process, an exchange where a party agrees to do a thing in return for another party agreeing to do a thing.
To use old-style language, a transaction is a bargain, an exchange of promises.
And for the business people concerned in a commercial transaction, that contract has sanctity. So if a party does not comply or even breaches the contract there are remedies which are intended to place the injured party in the position they would have been had the agreement been properly performed. Often these are “money” remedies, but sometimes they can be injunctions or other court orders.
The court will enforce what the parties had agreed, for the agreement is the thing.
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But for Trump, the agreement is not the thing.
An agreement is there to be opportunistically repudiated, and not to be performed.
An agreement offers an opportunity to gain leverage, for a new negotiation. for a new exertion of power.
This approach has also been spotted by one acute British observer:

For Trump, notwithstanding his ghost-written book The Art of the Deal, deals are not an art but about artfulness.
For Trump, a hire is only of any use so long as they can then be “fired”.
Transactions are just there for suckers.
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There is nothing inherently weak in this anti-transactional approach: and indeed it has proved successful for Trump, both politically and commercially.
And, yes, he does deploy the rhetoric of “the deal”.
But this only makes him transactional in the same way an atheist going on about “God” makes them a Christian. There is instead a positive disbelief in the words and concepts being used.
And so each supposed agreement with Trump is a mere marker for the next use (and abuse) of leverage: few if any transactions will ever be transacted. Things will move on, there will be new exertions of power, and new things demanded.
For Trump, a contract, like Littlefinger’s chaos, is a ladder.
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