Contract and tort as finite and infinite games

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Contract does not care how well you mean, just whether you met standard

The rules of tennis care not whether you flubbed the ball off the frame or ripped it savagely from the middle of the string bed, but whether it went over the net, in the court and frustrated your opponent’s attempt to get it back.

The JC’s most effective shots are ungainly shanks that scrape over the net at an right angle from the direction in which they were aimed.

Likewise, a contract cares not for your diligence in preparation, your timeliness, intention, acumen but whether the outcome you agreed to deliver actually came about.

A contract is a finite micro-game in the broader infinite game of commercial life. It is as if you have pegged off a rectangle, agreed some rules and must now batter the subject matter back and forth to the term if the agreement, abiding by the laws a laid down. There is even a referee of sorts, though the cost of engaging var is usually beyond the proportions of the contest.

In either case there is a scope for a cheapest to deliver — in the confines of a sporting contest it is explicitly the best strategy, within a single contract it is rationally the best strategy.

Tort cares city about outcome but intention and defensibility of conduct.

In this regard, just as a zero-sum contest like a sport is an infinite game so is a specific transaction contract. But not a framework contract. And the law of sort sets the ground runs for an infinite game.

See also

• VAR as a metaphor for litigation