Matthew Marinett, ‘Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract’

Abstract
Despite the existence of a near consensus on most of the specifics of common law contract law, there remains a great deal of uncertainty about how doctrines of contractual fairness are to be applied to excuse a party from a contract, and no clear justificatory principle has been found to explain them. This article attempts to reach a unifying principle for the exceptions to contractual enforcement, including unconscionability, undue influence, duress, and mistake, based on the premise that, in order to find a unifying principle for why we provide exceptions to contractual enforcement on the basis that the contract is unfair, we must first determine why contract is enforced at all. The exceptions to contractual enforcement can then be united by a principle that contracts should not be enforced where to do so would undermine the purposes of enforcing contract, or where the reasons for non-enforcement outweigh the reasons for enforcement …

Marinett, Matthew, Protecting Individual Self-Interest in Aggregate as the Basis of Fairness in Contract (May 25, 2017). Alberta Law Review, forthcoming.

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