Private Law Theory

ABSTRACT
Contract formalities are often technical and may seem petty. But they can, and at their best they indeed do, play a key role in the liberal drama of modern contract law. Liberal contract is committed to proactively facilitate people’s cooperation efforts in the service of their autonomy. This is an ambitious task, which requires contract law to discard the merely proceduralist posture of the classical model, and offer parties an inventory of robust contract types, each with a set of default rules, so that they can choose the type that fits best to their goals and set up their joint contractual plan by tinkering with these defaults. But for this enterprise to be liberal, it must also include features that guard against the endemic risks of involuntariness. This is the empowering mission of contract formalities, which play an indispensable role as entry rules to these contract types and as shields from unintended contractual obligations insofar as they might be autonomy-reducing. In this Article we develop a liberal theory of contract formalities and demonstrate, by studying the most important ones, both its explanatory credentials and its reformist promise.

Dagan, Hanoch and Gergen, Mark P, Autonomy and Form (February 21, 2024).