Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract possible and freedom of contract generates variation in transactional structures. In effect, it creates a store of possible solutions to problems of social organization. Second, consent is one method among several by which ‘bad’ solutions are weeded out and ‘good’ solutions are selected. However, consent is not the only-or in many cases even the primary-feedback mechanism for transactional structures. Hence, in many situations we are comfortable enforcing contracts where consent is formal at best and the voluntariness of contracting parties is open to serious doubt. This is because there are other mechanisms that mitigate against pathological transactional forms. Ultimately ‘meaningful consent’ is not a necessary condition for the normative justification of contractual enforcement. Applying this model to boilerplate contracts explains why we are justified in enforcing agreements where consent may be attenuated and very imperfectly informed. The voluminous criticism of these agreements shares the common assumption that robust voluntary consent is a necessary condition for the normative justification of contract law. This basic assumption, however, is mistaken.
Oman, Nathan B, Reconsidering Contractual Consent: Why We Shouldn’t Worry Too Much About Boilerplate and Other Puzzles (September 2017). William and Mary Law School Research Paper No 09-372.