Contract as an Object of People’s Will

Abstract This paper takes a simple definition of consent from the law of battery—consent involves a conscious choice—to show that consent so defined plays a crucial but necessarily limited role in contract law. Contract generally does flow from a conscious choice (or at least its appearance), but this is necessarily true only with respect to aspects of a transaction that people think and communicate about when they make a contract. The most important objects of consent (so defined) in contract law are consent to engage in a bargain-exchange transaction, and consent to a writing as an expression of terms, because people can be expected to have these objects in mind when they make a contract. Terms themselves are an object of consent when people think and communicate about them, but often they are not—as in a predictably unread term in a writing. Defining consent in this way reveals that the apparent consensus that contract turns on “objective intent” is misleading, for people use the term to mean two very different things. Some people define objective intent as apparent intent, while others define it as intent indicated by a rule or a convention, even when the other party knows or should know the first party’s true intent. Indeed, this is the major point of difference between classical contract law and modern contract law in the rules that give legal effect to a writing. Finally, the paper argues that the fact that intent includes terms that go without saying is not a reason to reject a simple “mentalistic” definition of intent for the purposes of legal analysis. Terms that go without saying will be picked up by a rule deriving terms from context, along with other terms derived from context that would not be described as intended (or as intended in this way).