Introduction:
“… Part I of this Article examines the Restatement (Second) of Contracts both for the state of the law and for a justification for a separate assent doctrine. Finding assent described as elemental without any justification, this Article argues on the Restatement’s terms that the assent doctrine is in fact just a part of the consideration analysis. Part II then explains why the doctrine of assent is part of contract law. Section A explains the history and origins of the assent doctrines. In fact, assent doctrines arose to solve a specific problem in the consideration analysis: When did consideration arise? Or, put another way: When did the promise become binding? It became binding because consideration was given for it. In fact, as long as consideration remains necessary, it could not become binding before that time. But partly because mutual inducement is some times difficult to determine, consideration doctrines were shored up with analyses of the time delay between promise and consideration, or vice versa. For example, past consideration was not allowed, and doing something one had a prior legal duty to do was not consideration …”
Val Ricks, Assent Is Not an Element of Contract Formation. 2013. 61 Kansas Law Review 591.
First posted 2013-05-08 06:35:37
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