Contract as Procedural Justice

Abstract

The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying but regard the process of agreement as reliable evidence that contracts are welfare-improving. This article demonstrates the limitations of pure and perfect views. It favors instead imperfect theories of contract, which would have judges self-consciously pursue the normative ends of contract law as they apply context-sensitive rules.

Keywords: contract, procedural justice, autonomy, consent, perfect procedural justice, imperfect procedural justice, pure procedural justice, contract interpretation

JEL Classification: B4, K12