The Unbearable Lightness of Consent in Contract Law

Abstract

Consent has enjoyed a dominant position in contract law. Scholars have described it as the “master concept that defines the law of contracts in the United States.” That makes intuitive sense. Contracts are private agreements – a set of terms and conditions to which the parties have consented. Some have pointed out that the consent doctrine helps protect individual autonomy and freedom of contract, core values protected by contract law. Consent has served to justify the government’s choice of sides in a contractual relationship. This article does not question the role of consent as the basis for a moral obligation to keep one’s promise. It explores the question of whether consent alone is sufficient to justify the government’s choice to side with one party in a contractual relationship. This article identifies the problematic aspects of consent. Consent is an amorphous concept difficult to define and its existence is difficult to ascertain. Furthermore, unprecedented market place manipulation raises some thorny issues for contract law. Is it consent if someone signed an agreement, but unbeknownst to him, the agreement was carefully designed to induce him to sign the agreement? In increasing number of cases, an outward manifestation of consent does not necessarily equal to knowledge required for meaningful consent. Should the government use its coercive power to favor the manipulator? Because of the ease with which “consent” can be manipulated, contract law’s consent focus will inevitably lead the courts to use the coercive power of the state to favor the more powerful party in an economic relationship. The party with more bargaining power, resources and better access to information is in a better position to manipulate. This article proposes that contract law abandon its consent focus. The elasticity of the concept and its easy manipulability render it an improper basis for state intervention. Instead, courts should adopt a totality of circumstances standard to determine whether the government should exercise its coercive power to favor one contractual party over the other.

Keywords: consent doctrine, contract law, use of government's coercive power, contract law's totality of the circumstances standard, marketplace manipulations of consent