Contracts

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Courts sometimes impose liability in contract on grounds other than assent. In these cases, courts may rely on constructive or “deemed” (often “objective”) assent that has no probable, and sometimes no plausible, connection to subjective assent. A party may voluntarily do something a court takes as creating liability, but other facts show the party’s actual or reasonable understanding is that no liability would occur or that, if liability occurred, it would be on different terms. Liability's connection to autonomy or efficiency is at best tenuous, and may be absent. Why impose liability, then? This kind of case has always been part of contract law. It occurs when a court holds parties to terms to which neither agreed. Other instances may include rolling contracts imposing terms a consumer would not reasonably expect, the unilateral revocation of implied terms of employment contracts, and contracts made by machine in which the machine acts outside of any contemplated (or even foreseeable) directive. The panel will discuss positive, non-assent-based premises for liability. Deep concern of so many of our members about the imposition of liability without meaningful assent prompts an inquiry into other, non-assent-based justifications.

The Section held a virtual business meeting prior to the Annual Meeting.