Consent and contracts 1

Abstract

Consent – in one form or another – is at the core of the modern understanding of contract law. This Chapter shows how the nature of consent involved in contractual transactions is distinctively different from the consent involved in other sorts of events and transactions. The text also focuses issues of consent are in tension with another important aspect of contracts and contracting: that contracts – and their predictable enforceability – are central to modern commercial life. The Chapter begins by offering some general reflections on the nature of consent. It then considers the connection between consent and various doctrinal defenses to the enforcement of contracts. A subsequent section describes the way in which modern contracting practice generally falls far short of consent in its fullest sense. Finally, the text reflects on the practical effects “defective” consent may have for the enforcement of agreements, as well as the moral implications of defective consent for individuals’ obligations to keep contracts.