Kronman on Contract Law and Distributive Justice

Abstract

This paper examines Anthony Kronman’s idea that the voluntary basis of contracts should be conceived wholly in terms of a conception of distributive justice. For Kronman, voluntariness cannot be understood simply in terms of the idea of individual freedom; for him, in order to determine whether one party voluntarily consented to a particular contract or not, we have to determine whether the other party took advantage of her in an impermissible way. I argue that this way of looking at private transactions is problematic. My claim is that Kronman´s focus on distributive justice inhibits him from explaining the private nature of contractual transactions, which is precisely what he claims to be addressing. In particular, I argue that Kronman’s distributive approach cannot explain neither the privity rule, which is a central doctrine in contract law, nor the role of consent. Finally, drawing on the work of John Rawls, and against Kronman, I will suggest a different and objective account of justice in which the subjective desires of individuals plays no role in determining whether contracts should be enforced.

Keywords: Kronman, Contract Law, Distributive Justice, Paretianism, Rawls, Privity Rule, Consent