Agreements, Mistakes, and Contract Formation

Abstract

This article explores the nature of contract formation. It does so by examining the will theory and the declaration theory as accounts of agreement. The article concludes that neither theory is adequate either as a description of the operation of the law in practice or, more fundamentally, as an explanation of agreement. Instead, the article recommends an alternative account – ‘the objective will theory’ – that both adequately explains agreement and captures the operation of the law.

Keywords: legal theory, comparative law, contract formation, will theory, declaration theory