Rational bargaining theory and contract: default rules, hypothetical consent, the duty to disclose, and fraud

Article Abstract:

Consent plays a major role in determining default rules of contract, whereas the rational bargaining theory advocated by Jules L. Coleman plays a secondary role. Coleman's efficiency analysis of Laidlaw v Organ misses the real issue concerning the meaning of silence. The case concerned a default rule allowing nondisclosure of information related to a contract. Silence in this case was misleading but not fraudulent because the request for information was inappropriate. Analysis of contracts would be advanced by recognizing the informational role played by consent.

Analysis, Contracts, Consent (Law)

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The mixed conception of corrective justice

Article Abstract:

The 'mixed' conception of corrective justice described by Jules L. Coleman includes an unnecessary application of wrongfulness to the victim's loss instead of to the action of the wrongdoer. Consideration of cases of necessity and self-defense illustrate the problems with Coleman's distinction between wrongs and wrongdoings. The conception could be improved by retaining the notion of loss as having normative significance along with an agency requirement giving rise to a potential duty to repair. Then a comparative inquiry should be introduced to determine fault.

Justice, Torts

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• Abstracts: Interpreting torts, explaining contracts. Rational contractarianism, corrective justice, and tort law. Jules and the tortist

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