Friday, September 26, 2008
Contracts are usually said to be different from things like crimes and torts in that they impose duties based on the consent of the party. We're all bound by duties of tort law whether we choose to be or not, but at least in theory we are not subject to contractual duties unless we have consented to them.
The problem, as all first-year contracts students quickly learn, is that theory and practice don't fit all that well together. There are many situations in contract law where the law imposes duties even where it's clear a party has not consented, and many others where the law excuses performance even from those who have agreed.
So what exactly is contractual "consent"? Minnesota's Brian Bix takes an interesting whack at the question in Consent in Contract Law:
Here's the abstract:
Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract - an ideal by which there are obligations to the extent, but only to the extent, freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric.
This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent.