Mindy Chen-Wishart, ‘The Nature of Vitiating Factors in Contract Law’

At common law, agreements between parties that satisfy the requirements of contract formation generate contractual rights and obligations; but only presumptively so. Such rights and obligations may be defeated, wholly or partially, by recognized vitiating factors such as misrepresentation, mistake, duress, and undue influence. What is the nature of these vitiating factors and how do they relate to the arguments in favor of enforcing contracts? Do they merely negate the conditions for finding an enforceable contract in the first place, or do they express other values that qualify, trump, or otherwise interact with the pro-enforcement values? If the latter, what values are in play, how do they relate to each other, and how are they accommodated in legal reasoning and adjudication? The answer goes to the very nature and scope of contractual obligations and the conceptual apparatus for determining them.

Chen-Wishart, Mindy, The Nature of Vitiating Factors in Contract Law (December 10, 2015). Philosophical Foundations of Contract Law, Oxford University Press, ISBN 978–0–19–871301–2.

First posted 2015-12-31 08:19:59

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