Val Ricks, ‘Assent is Not an Element of Contract Formation’

Nearly everyone describes assent as an element of the law of contract formation. But it is not an element. Contract formation requires promise and consideration. Consideration only exists if the promise and consideration are sought for and given in exchange for each other. Exchange implies assent. So though it is possible to have assent without consideration, it is impossible to have consideration without assent. As long as consideration is required, a separate assent requirement is duplicative (and superfluous). Assent is not elemental.

This paper reveals the Restatement (Second)’s confused approach to this issue. The paper then tells how assent doctrines became part of contract law in the early 1800s, and why, and what role those doctrines now play. It is a limited role: Assent doctrines pinpoint when consideration comes to exist in cases where that is at issue. That is all assent doctrines do. Promise and consideration bear the full weight of contract formation law’s structure, including the formation defenses – duress, fraud, mistake, and unconscionability.

Given assent’s limited (and subordinate) role, judges should re-write the formation doctrine, teachers should teach consideration before assent, and scholars should focus more carefully on contract’s actual elements: promise and consideration.

Ricks, Val D., Assent is Not an Element of Contract Formation (July 29, 2011).

First posted 2011-09-03 13:12:58

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