Misrepresented Intent in the Context of Unequal Bargaining Power

18 Pages Posted: 21 Jun 2008

See all articles by Curtis Bridgeman

Curtis Bridgeman

Willamette University College of Law


While I disagree with Ayres and Klass about some details, overall they provide us with two very important insights: what promisees really need is to know the likelihood of performance, and the tort of promissory fraud is an underutilized tool for conveying that information. The better way to use the tort, however, is not to manipulate our presumptions about what representations are made by promises to perform. The law's presumptions are not as nuanced as our ordinary language usage, but its simplifications usually exist for good reasons. Instead, what might be more useful, at least in cases of unequal bargaining power, is to encourage drafting parties to make overt and clear representations about their likelihood of performance. I am not arguing that we should force such representations all of the time: if a party wants to undertake a simple, all-out commitment to performance, it should be able to do so without adding in information about probabilities. But on the other hand, if a party with a huge advantage in bargaining power wishes to reserve an out for itself so that it can either perform or not perform as it chooses, it should only be awarded such a right if it informed its contracting partner about the likelihood that the right will be exercised. Courts in contract cases can encourage such representations. The tort of promissory fraud would ensure those representations are reasonably accurate.

Suggested Citation

Bridgeman, Curtis, Misrepresented Intent in the Context of Unequal Bargaining Power. Florida State University Public Law and Legal Theory , Michigan State Law Review, p. 993, 2006 , Available at SSRN: https://ssrn.com/abstract=1148407

Curtis Bridgeman (Contact Author)

Willamette University College of Law ( email )

Salem, OR 97301
United States
503-370-6402 (Phone)

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