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Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison
Defects In Consent And Dividing The Benefit Of The Bargain: Recent Developments, Jeffrey Harrison
Jeffrey L Harrison
Contract law professors and students, attorneys, judges know that discussions about consent are rarely about consent. This results from three factors. First, it is the appearance of consent that is necessary to form a contract. Second, not every manifestation of consent is sufficient to create a contract that cannot be avoided. Third, interpretations of consent have the potential to allow courts to intervene when the benefit of the bargain is seen to be unfairly divided or one of the parties is actually worse off as a result of the contract. This Article assesses the extent to which recent decisions about …
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations
Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations
David Gamage
Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …