Voluntary Obligation and Contract

20(2) Theoretical Inquiries L. 2019, Forthcoming

Fordham Law Legal Studies Research Paper No. 3171189

17 Pages Posted: 14 May 2018

See all articles by Aditi Bagchi

Aditi Bagchi

Fordham University School of Law

Date Written: April 30, 2018


Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others.

To the extent our choices in contract do not reflect our individual moral constitutions -- our values, virtues, vices, the set of reasons we reject and the set of reasons we endorse -- we are not justified in regulating contracts reluctantly. Contracts are entitled to the privilege of liberal regulatory deference only to the extent they are the work product of individual autonomy. The assumption that contract is voluntary does enormous work in most normative theories of contract.

This Essay takes still more seriously the obstacles to autonomous choice that contracting parties face. The most important constraints are not in contract law itself but in the material and moral imperatives that dictate parties’ contracting preferences. Many contracts are driven by circumstantial considerations or actual background obligation. While these contracts are not wholly lacking in the element of voluntariness, we should distinguish them from those choices – and those contracts – which more fully realize our potential to self-consciously author our relations with others. Autonomous choice in contract requires more than Dagan and Heller imply, and it is likely beyond the power of contract law standing alone to deliver it.

Keywords: contract, voluntary obligation, moral agency, autonomy, promise

Suggested Citation

Bagchi, Aditi, Voluntary Obligation and Contract (April 30, 2018). 20(2) Theoretical Inquiries L. 2019, Forthcoming; Fordham Law Legal Studies Research Paper No. 3171189. Available at SSRN: https://ssrn.com/abstract=3171189

Aditi Bagchi (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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