Public Responsibilities Beyond Consent: Rethinking Contract Theory

47 Pages Posted: 11 Mar 2020

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Date Written: July 1, 2016

Abstract

This Article argues for a vital new pathway to the regulation of contracts in American law. It proposes a theory of public responsibility to safeguard public values that are unprotected by the reciprocal consent of private parties to contract. Challenging the conception of contracts-as-property-rights, it posits that such responsibilities are necessary to redress public harm that is ordinarily not protected by the exchange of contractual promises. If contract law is to support social justice, it ought to surpass restrictive conceptions of equity that focus wholly on corrective injustice between contracting parties at the expense of public deterrence. If contract regulation is to promote the public good, it ought to transcend limiting theories of consent that reduce public responsibilities to imperfect obligations that are binding in morality, but not in law.

Keywords: regulation of contracts, American law, public responsibilities, imperfect obligations, public harm, exchange of contractual promises

Suggested Citation

Trakman, Leon, Public Responsibilities Beyond Consent: Rethinking Contract Theory (July 1, 2016). Hofstra Law Review, Vol. 45, No. 217, 2016, UNSW Law Research Paper No. 5, Available at SSRN: https://ssrn.com/abstract=2920501

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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