Enforcing the Contract at All (Social) Costs: The Boundary Between Private Contract Law and the Public Interest
30 Pages Posted: 4 Nov 2007
Over the years, the enforcement of commercial contracts has taken on increased importance. Today, contract law is a viable and innovative tool to protect commercial rights, eagerly inventing novel approaches to issues with an economic or commercial component. For example, contracts of adhesion are often enforced, despite the lack of true assent, in recognition of the realities of modern commerce, in which most buyers and sellers never meet and most signatories do not read the agreements they sign. But its use for the protection of third parties and the public is not always equally pursued, resulting in less attention to non-economic issues and losses.
Through a variety of examples, this Article explores the limitations on the ability of contract law to deal with the protection of third parties and the public. This limitation is manifested in two distinct ways: (1) Commercial contracts are typically enforced without regard to the negative impact they may have on the public; and (2) although some courts appear willing to stretch the bounds of the law to ensure contracts are enforced in commercial contexts, there has been substantially less motivation to enforce contracts for the public good. Accordingly, the Article discusses the innovative and flexible nature of the common law of contracts as it applies to protecting commercial interests and players and the inadequacy of contract law as a means of protecting public and non-economic interests.
Keywords: Contract law, common law, commercial contracts, public interest, standardized contracts, adhesion contracts, Uniform Commercial Code, Externalities, Private Contract
JEL Classification: K12, K00
Suggested Citation: Suggested Citation