Precontractual Justice

Abstract

Why has the law of fraud expanded beyond the traditional categories of misrepresentation and concealment to include affirmative duties of disclosure? What justifies doctrines as diverse as unilateral mistake, duress, and unconscionability? And how can we explain modern regulatory cognates of these doctrines such as anti-price gouging laws? Leading contract law theories – law-and-economics, corrective justice, just exchange, and distributive justice – fail to justify this constellation of related doctrines and regulations. And if these doctrines are not normatively justifiable, how could they count as bedrock contract law taught to every first-year law student?

The problem is not contract law, but rather contract theory. As soon as we acknowledge that self-determination and substantive equality provide the normative grounding for contact law, the necessity of all these justice-related doctrines becomes clear. They are not a mistake. Nor are they illegitimate. This broad swath of core contract law is best explained and justified by reference to relational justice, namely, to reciprocal respect for self-determination and substantive equality. Relational justice at the precontractual stage provides the normative resources with which to address cases involving one party experiencing harsh circumstances or predicament during the bargaining process or operating under significant informational disadvantage.