Kar and Radin, ‘Pseudo-Contract and Shared Meaning Analysis’

Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. In a series of ad hoc fixes reminiscent of the ‘epicycles’ that tried to square Ptolemaic geocentric theories of planetary motion with recalcitrant observations, contract law has been shifting away from its traditional focus on enforcing parties’ actual agreements. This shift has been transforming the meanings of central contract law concepts. We view the shift as an untheorized paradigm slip, inviting a generalized theory of contract as assumption of risk and allowing private obligations to be created unilaterally without actual agreement. This sort of obligation is still called ‘contract’. But it is pseudo-contract …

Kar, Robin Bradley and Radin, Margaret Jane, Pseudo-Contract and Shared Meaning Analysis (February 14, 2018).

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