Nathan B. Oman (William & Mary Law School) has posted Intent to Create Legal Relations and the Nature of Contractual Consent (Research Handbook of the Philosophy of Contract Law (Mindy Chen & Prince Saprai eds. Forthcoming) on SSRN. Here is the abstract:
The nature of contractual consent is less normatively important to contract law than many leading contract law theories assume. The common law in both England and America recognizes that intent to create legal relations is an important issue in contract formation. It is tempting to see in these doctrines a search for a particular kind of consent that can serve as a normative touchstone for justifying contractual enforcement. To put the point more precisely, we might think that for consensual agreement to justify contractual liability the consent of the parties must necessarily have certain legitimacy-creating characteristics. The intent to create legal relations seems like a promising potential candidate for such a legitimacy-creating characteristic. Several leading contract law theorists have taken this position. However, if one examines cases where the intent of the parties’ with regard to their legal relationship is doctrinally relevant, courts seem to ask whether enforcement is commercially reasonable in light of the parties’ expressed intentions rather than searching for a particular kind of consent. Contracts will be enforced in the face of what can best be described as heterogeneous intentions with regard to legal relations. Courts seem most comfortable enforcing contracts when doing so will grease the wheels of beneficial commerce. Perhaps unsurprisingly, they honor parties’ intent to create legal relations (or its absence) in these situations. They are far more hesitant, however, to defer to parties’ legal intentions when doing so involves questionable commercial dealing or bargaining in contexts such as the family where the norms and institutions of the market cannot be presumed to channel enlightened self-interest in normatively attractive ways. In short, a careful look at intent to create legal relations suggests that commerce rather than a single, normatively consistent vision of consent drives contract law.
Highly recommended.
