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Assent Is Not An Element Of Contract Formation, Val D. Ricks
Assent Is Not An Element Of Contract Formation, Val D. Ricks
Val D. Ricks
Nearly everyone describes assent as an element of the law of contract formation. But it is not an element. Contract formation requires promise and consideration. Consideration requires exchange. Exchange implies assent. So though it is possible to have assent without consideration, it is impossible to have consideration without assent. As long as consideration is required, then, a separate requirement of assent is duplicative (and superfluous). The Restatement (Second) waffled on this issue. This paper shows how assent doctrines became part of contract law in the early 1800s, and why, and what role those doctrines now play. It is a limited …
The Possibility Of Plain Meaning: Wittgenstein And The Contract Precedents, Val D. Ricks
The Possibility Of Plain Meaning: Wittgenstein And The Contract Precedents, Val D. Ricks
Val D. Ricks
The fashion in American law schools is to teach that contractual language cannot have a plain meaning. Most of this teaching occurs when students study the “plain meaning rule.” This rule allows a judge, after finding unambiguous language (plain meaning) in a written contract, to refuse to look at other evidence of that language’s meaning. The rule is heavily criticized, but claims against it have been exaggerated. One of these exaggerated claims is that plain meaning is impossible. This claim is found in the caselaw opinions that students are made to read. It appears most clearly in Pacific Gas & …