Orit Gan, ‘The Many Faces of Contractual Consent’

Consent, a powerful concept that lies at the heart of contract law, has received a great amount of scholarly attention. Recently, some contract law scholars have been criticizing consent and suggesting alternative concepts. Contrary to this approach, this Article offers a nuanced description of consent that could pave the way for a better application of consent in contract law. At present, courts ascribe only a narrow meaning to consent, namely, that consent is either informed and freely given, or it is not. However, consent is not simply a ‘yes or no’ question; consent is more complex than such an analysis suggests and can be both gradual and continuous. Rejecting a binary framework which views consent as an on/off concept, this Article asserts that consent is better understood as a spectrum that ranges from ‘no consent’ to ‘solid consent’, and that contains many gray areas in between. These gray areas include, but are not limited to, hesitation, deliberation, negotiations, mixed feelings and reservations. Further complicating the matter is the fact that consent is often contextual. Consent is shaped by the relationship between the consenter and the consentee. Factors of power, intimacy, trust, arm’s length relations and more all differently influence consent. Moreover, consent is socially constructed. Factors such as gender, race and class directly influence the choices and constraints present for both parties in the background of a consensual decision, as do factors such as social context and policy considerations. Consent must be recognized as deriving not only from the individual mindsets of the parties, but also from the relevant public and social circumstances. As such, consent to a prenuptial agreement, consent to an employment agreement and consent to a consumer contract must be recognized as distinct from one another, in that they are shaped by their unique social contexts. By exploring the many shades of consent, this Article may serve as a starting point in the development of a diverse and heterogenic yet useful and practical concept of consent.

Gan, Orit, The Many Faces of Contractual Consent (March 23, 2017). Drake Law Review, Vol 65, 2017.

First posted 2017-03-24 08:40:06

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