Assent Is Not an Element of Contract Formation
66 Pages Posted: 31 Jul 2011 Last revised: 22 Apr 2013
Date Written: March 31, 2013
Nearly everyone describes assent as an element of the law of contract formation. But it is not an element. Contract formation requires promise and consideration.
Consideration requires exchange. Exchange implies assent. So though it is possible to have assent without consideration, it is impossible to have consideration without assent. As long as consideration is required, then, a separate requirement of assent is duplicative (and superfluous).
The Restatement (Second) waffled on this issue. This paper shows how assent doctrines became part of contract law in the early 1800s, and why, and what role those doctrines now play. It is a limited role: Assent doctrines pinpoint when consideration comes to exist. That is all they do. Promise and consideration bear the full weight of contract formation law's structure.
Given assent's limited (and subordinate) role, judges should re-write the formation doctrine, teachers should teach consideration before assent, and scholars should focus more carefully on contract's actual elements: promise and consideration.
Keywords: contract law, legal history, consideration, assent, duress, fraud, mistake, unconscionability, legal doctrine
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