Transparent and Opaque Consent in Contract Formation

Abstract

If I say that I “consent to your terms,” I can mean that I consent to terms a-n, which you have proposed. But I also can mean that I consent to your terms, whatever they are, even if I don’t know what they are. Philosophers of language sometimes call the first reading “transparent” and the second reading “opaque.” The phenomenon occurs with many verbs. A classic illustration in the literature is “Bond believes that the author of this letter is a spy.” The speaker may be thinking of a particular author (the transparent reading), or may be saying that Bond has a good ear for spy talk, even though he could not identify the author (the opaque reading).

This essay argues that as commercial life has become more commodified, opaque consent has become more the norm, with the result that consent is often given in total ignorance of what has been proposed. Yet I disagree with those who argue that one does not consent if one does not know or understand the terms that have been proposed. Instead I argue that the fact that such verbs are ambiguous in the way described above licenses judges to apply standard contract doctrines, often developed more than a century ago with the assumption of transparent consent, to situations involving opaque consent.

I conclude with suggestions for how judges can become more flexible by requiring some combination of transparency and opacity without forsaking the notion that consent is at the heart of contract formation. The EU has had a directive to that effect in place for about two decades. And if judges cannot begin to do so, legislatures should step in.

Keywords: contract, consent, consumer, opacity, transparency