Hello, I’m Zhan Qingyun.

Contracts recognized and enforced by law must, of course, satisfy basic elements.

A contract normally requires consideration. A unilateral gift is not a contract and may be withdrawn before completion.

Many interesting stories concern those elements, and we can tell them later. Yet contract enforcement leaves courts a vast discretionary space because much must be considered beyond the text.

Legal scholars divide into schools over which contracts should be enforced. Some emphasize the parties’ free will: law should carry out what they intended, carefully asking what they actually agreed.

Was there truly a meeting of the minds, and what did each party expect at that moment?

A more conventional and common approach is broadly utilitarian. It asks whether enforcing, declining to enforce, or enforcing in a particular manner will maximize the parties’ and society’s welfare. When literal enforcement would waste enormous social resources, courts hesitate.

Contract law is therefore often flexible. Courts do not mechanically split hairs or remain shackled to words, and they generally resist a party pressing a technical right without mercy.

We hear the classic illustration as children: in Shakespeare’s The Merchant of Venice, the lender insists that the contract entitles him to cut a pound of flesh. When he refuses every appeal, the judge replies that he may not shed blood—answering ruthless literalism with literalism of its own.

Modern disputes offer similar characters. In one almost comic case, an owner hired a contractor to build a house.

The contract specified countless details, including the brand of every pipe. The careless contractor installed another brand. The owner sued, arguing that the house did not conform to the agreement and must be demolished and rebuilt.

The judge’s answer was essentially: that is absurdly wasteful. The contractor had not performed with perfect precision and owed some compensation.

But a minor defect did not nullify performance of the entire contract. Building the house still constituted substantial performance; literalism could not justify destroying it merely to replace some pipes. The house remained, with appropriate damages for the owner.

Let us apply this broadly utilitarian perspective to surrogacy.