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Contract Law, Party Sophistication And The New Formalism, Meredith Miller

Meredith R. Miller

With increasing frequency, courts are mentioning party sophistication as relevant to whether a contract has been formed, whether a contract is enforceable, how the contract should be interpreted, and even, in some instances, the determination of an appropriate remedy. Sophisticated parties are held to a different set of rules, grounded in freedom of contract. It is presumed that a sophisticated party was aware of what to bargain for and read (or should have read) and understood (or should have understood) the terms of a written agreement. But, just what do courts mean when they call a contracting party “sophisticated”? “Sophistication” …