Mark Gergen | Contract as an Object of People’s Will

This event, hosted by the UCI Center for Legal Philosophy, welcomes Mark Gergen, Professor of Tax Law and Policy at UC Berkeley, to present, “Contract as an Object of People’s Will."

Mark Gergen is Robert and Joann Burch D.P. Professor of Tax Law and Policy, University of California Berkeley, School of Law, and an affiliated faculty member with the Berkeley Center for Private Law Theory. His principal research and teaching interests are in Contracts, Torts, Property, Restitution, Remedies, Taxation, and Private Law Theory, and he has widely published on these topics. A recent book chapter is “Consent Across Private Law,” in S. Bray, et. al., eds, INTERSTITIAL PRIVATE LAW (Oxford 2024). Professor Gergen is coauthor of a leading casebook, Fuller, Eisenberg, and Gergen, Basic Contract Law. From 2016 to 2021, he was Associate Dean for Faculty Research and Development. From 2005 to 2007, he was Reporter, Restatement Third, Economic Torts and Related Wrongs.

Abstract:

This paper takes a simple definition of consent from the law of battery (i.e., consent involves a conscious choice) to show that consent so defined plays a crucial but necessarily limited role in contract law. Contract generally does flow from a conscious choice (or at least its appearance), but this necessarily is only with respect to aspects of a transaction that people think and communicate about when they make a contract. The most important objects of consent (so defined) in contract law are to engage in a bargain-exchange transaction and to a writing as an expression of terms, because people can be expected to have these objects in mind when they make a contract. Terms are an object of consent when people think and communicate about a term, but often they are not (as in a predictably unread term in a writing). Defining consent this way reveals that the apparent consensus that contract turns on “objective intent” is misleading for people use the term to mean two very different things. Some people define objective intent as apparent intent while others define it as intent indicated by a rule or a convention, even when the other party knows or should know the first party’s true intent. Indeed, this is the major point of difference between classical contract law and modern contract law in the rules that give legal effect to a writing. Finally, the paper argues that the fact intent includes terms that go without saying is not a reason to reject a simple “mentalistic” definition of intent for purposes of legal analysis. Terms that go without saying will be picked up by a rule deriving terms from context, along with other terms derived from context that would not be described as intended (or intended in this way).

Link to Mark Gergen's paper: https://drive.google.com/file/d/1y1a4vQnpyS2pEPIpEVcEiV5sPniFe9z6/view?usp=sharing

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