Private Contracts and Public Problems: Understanding the Future of Contracting through Resilient Property Theory

Marc L. Roark

Chapter 8 in A Research Agenda for Contract Law, 2026, pp 183-198 from Edward Elgar Publishing

Abstract: This chapter uses the rise and unraveling of the Below-Market Interest Rate (BMIR) housing program to show the limits of traditional contract law in public–private partnerships. As U.S. federal policy shifted toward subsidizing private development, BMIR offered below-market financing in exchange for long-term affordability, while also granting early mortgage prepayment rights that developers viewed as essential. When Congress later restricted these rights to prevent losses in affordable housing, developers brought contract and takings claims, generating decades of litigation. Courts resolved these disputes through a narrow, privity-focused lens that reinforced state resilience while overlooking the economic and institutional vulnerabilities that destabilized the program. Using Resilient Property Theory, the chapter shows how resilience was unevenly distributed among the state, developers, and residents, and how judicial formalism obscured public stakes embedded in nominally private contracts. It argues that public–private partnerships require frameworks capable of addressing multiscalar impacts and overlapping vulnerabilities.

Keywords: Resilient Property Theory; RPT; Hierarchical Resilience; Material Resilience; Rhetorical Resilience; Wicked Problems; Vulnerability Theory (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035342570
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