Coleman on Gap-Filling and Default Rules
Diritto e Questioni Pubbliche, N. 12 (2012), pp. 161-179-
11 Pages Posted: 9 Oct 2012 Last revised: 18 Feb 2013
Date Written: October 8, 2012
Critics of consent theorists of contract have argued that autonomy-based theories of contract law do not provide any guidance in understanding how courts do or should decide cases when an issue on which the parties have not explicitly agreed upon arises. In Risks and Wrongs, Jules Coleman takes the challenge of rescuing the consent theorist from this attack. He defends a rational bargaining approach to gap-filling and default rules in contract law. In this comment, I pose a challenge to Coleman´s argument. Against his view, I suggest that, in order to solve many of the disputes between the parties to a contract regarding contingencies for which no explicit adequate provisions have been made ex ante in the parties´ agreement, the consent theorist need not resort to the ex ante rational contract. Coleman´s argument is based on the assumption that, whenever the parties do not explicitly agree on something, the relevant issue falls into a contractual gap. My claim is that not everything should be explicit in order for the parties to a contract to be able to understand what the terms of their agreement might be. My argument relies on – what I will call - a “public” conception of consent. In light of such an account of consent, the consent of the parties covers more than what the parties actually included or mentioned in their agreement. The paper concludes by suggesting that Coleman´s argument is relevant in those cases where implied-in-fact understandings are vague and courts have no option but to stipulate terms into the contract.
Keywords: Gap-Filling, Default Rules, Contracts, Implied Terms, Reasonableness
Suggested Citation: Suggested Citation