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- Title
A "MEETING OF THE MINDS"--THE GREATER ILLUSION.
- Authors
Damren, Samuel C.
- Abstract
This paper examines the historical, legal and philosophical foundations of the concept of consent in contract law. There are two competing legal theories of contract interpretation: the subjective school and the objective school. According to Professor Arthur Corbin, a proponent of the subjective school, the theory underlying the Primacy Principle was originally based upon the 16th century so-called will theory of contracts which held that a contract is made by the voluntary agreement of men and not by the state. In contrast to the subjective school, proponents of the objective school of contract interpretation place a higher priority on the acts of contracting parties' actual intentions. In a commercial context, where the utility of an agreement is often dependent upon the swift and certain enforcement of its terms, delays of this sort impinge upon the use of contract law to effectively order business relationships. To principled proponents of the subjective school, the most frustrating aspect of the Primacy Dilemma is the realization that even after a trial, the full ascertainment of individual will, the mission of the Primacy Principle can never be certain. Thus, while the objective and subjective schools do not view the Primacy Principle as having the same position in their respective hierarchies of contract values, each acknowledge the factual circumstance of the Primacy Dilemma.
- Subjects
CONSENT (Law); LAW; CONTRACTS; WILL
- Publication
Law & Philosophy, 1996, Vol 15, Issue 3, p271
- ISSN
0167-5249
- Publication type
Article
- DOI
10.1007/BF00161337