ABSTRACT
Consent has traditionally been regarded as the foundation of contract law, fundamental to both ancient barter exchanges and modern commercial agreements. Classical doctrine holds that if consent is undermined by factors like misrepresentation, mistake, or duress, the contract gets vitiated. However, in the age of standard form contracts, this notion of mutual consent increasingly appears as a legal fiction. It becomes a theoretical construct used to maintain the illusion of fairness in contract formation. This essay argues that while consent retains formal significance, it has become detached from practical reality, especially in modern commercial contexts. Airline tickets, insurance policies, and e-commerce contracts offer grounds for analyzing consent as a vitiating factor, especially through their non-negotiable nature. By examining the philosophical underpinnings of defective consent and the subjective-objective nature of the consent debate, alongside English and Pakistani jurisprudence on duress, the essay advocates for moving beyond a reductionist, consent-centric framework toward a pluralistic understanding of contractual obligations.
Motasim, Muhammad, The Illusion of Consent: A Philosophical and Legal Inquiry into Duress, Mistake, and Free Will in Standard Form Contracts (July 13, 2025).
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