Download This PaperThe Right to Justification of Contract
33 Ratio Juris (2020), 196-222
Amsterdam Law School Research Paper 2019-08
Centre for the Study of European Contract Law Working Paper No. 2019-04
25 Pages Posted: 26 Feb 2019 Last revised: 1 Sep 2020
Date Written: February 25, 2019
Abstract
This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading monist and essentialist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract. Instead, it argues, a critical discourse theory of contract can contribute to the realisation of the right to justification of contract by exposing patterns of contractual injustice, in particular exploitation and domination by contract, that contract law can and should prevent.
Keywords: contract law, right to justification, contractual injustice, exploitation, domination by contract
JEL Classification: K12
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