November 02, 2005
Robertson on Voluntariness
Contractual obligations are usually considered to be "voluntarily" assumed. But what exactly does that mean? And is it, in fact, true?
Andrew Robertson (Melbourne) tackles these issues in The Limits of Voluntariness in Contract, forthcoming in the Melbourne University Law Review. Here's the abstract:
Judges and scholars routinely assert that contractual obligations are voluntary or voluntarily assumed. This article considers whether contractual obligations can accurately be characterized in this way. A legal obligation can be regarded as voluntary only if it is substantially understood, and the decision to assume it is intentional and substantially unconstrained. The article focuses on the two least voluntary sources of contractual obligations: standard forms and default rules.
Standard form terms are typically unread, commonly misunderstood and difficult to avoid. The article explores the circumstances in which the obligations arising from unread standard form terms can properly be regarded as voluntary, and those in which they cannot. It considers the extent to which the legal response to standard form terms enhances voluntariness in standard form contracting. The article also considers the extent to which the obligations arising from default rules can be regarded as voluntary. Default rules are commonly misunderstood by contracting parties, do not always follow well-established conventions and are difficult to avoid in routine transactions.
A growing body of literature offers a voluntaristic rationalisation of default rules and seeks to challenge the idea that external standards play a significant role in shaping contractual obligations. This literature fails to provide a convincing explanation that the criteria at work in the relevant cases can properly be regarded as internal to the contract. The article concludes that contractual obligations in general cannot accurately be characterized as voluntary.
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