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The Right to Justification of Contract
Author(s) -
Hesselink Martijn W.
Publication year - 2020
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/raju.12287
Subject(s) - frustration of purpose , severability , exclusion clause , law and economics , contract theory , reciprocal , law , blueprint , value (mathematics) , essentialism , privity of contract , contract management , economics , political science , epistemology , philosophy , computer science , mechanical engineering , linguistics , neoclassical economics , management , machine learning , engineering
This paper defends a right to the justification of contract, with reciprocal and general reasons, and explores its main implications for the law of contract and its theory. It argues that the leading essentialist and other monist contract theories, offering blueprints for an ideal contract law based on the alleged ultimate value or essential characteristic of contract law, cannot justify the basic structure of contract law. Instead, it argues, a critical discourse theory of contract can contribute to the realisation of the right to justification of contract by exposing patterns of contractual injustice, in particular exploitation and domination by contract, that contract law can and should prevent.