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Philosophical Foundations of Contract Law$
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Gregory Klass, George Letsas, and Prince Saprai

Print publication date: 2014

Print ISBN-13: 9780198713012

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198713012.001.0001

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The Nature of Vitiating Factors in Contract Law

The Nature of Vitiating Factors in Contract Law

(p.294) 15 The Nature of Vitiating Factors in Contract Law
Philosophical Foundations of Contract Law

Mindy Chen-Wishart

Oxford University Press

The orthodox account of vitiating factors in contract law presents an appealingly simple “consent-in, lack-of-consent-out” picture that is, nevertheless, normatively skewed, lacks fit with the law it seeks to explain, lacks transparency, and takes an unrealistic and disrespectful view of the complainant’s rationality. It tames the evidence of factors at work beyond defective consent by three common techniques that reinforce the distorted and unsatisfactory view of the vitiating factors. Identifying the principles behind these “other” factors and accommodating them within a two-step defeasibility approach redresses the normative imbalance, enhances transparency, yields better fit with the law, and affirms the importance of the human faculties of reason and responsibility. Rather than obscuring important issues behind the facade of qualifying consent, the path is cleared for an open examination of the operative principles and their relationship to the consent principle.

Keywords:   vitiating factors, autonomy, consent, fairness, exploitation, defences, defeasibility, pluralism, contract theory

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