Autonomy and Form

Contract formalities are often technical and may seem petty. But they can, and at their best they indeed do, play a key role in the liberal drama of modern contract law. Liberal contract is committed to proactively facilitate people’s cooperation in the service of their autonomy. This is an ambitious task, which requires contract law to discard the merely proceduralist posture of the classical model, and offer parties an inventory of robust contract types, each with a set of default rules, so that they can choose the type that generally fits their goals and then tinker with these defaults to best achieve their goals. But for this enterprise to be liberal, it must also include features that guard against the endemic risks of involuntariness. This is the empowering mission of contract formalities, which play an indispensable role as entry rules to these contract types and as shields from unintended contractual obligations that would be autonomy-reducing. In this Article we develop a liberal theory of contract formalities and demonstrate, by studying the most important ones, both its explanatory power and its reformist promise. Thus, for example, our theory clarifies the inadequacies of the statute of frauds, while recognizing the autonomy-enhancing potential of making a signed writing a requirement for certain contract types and refining the criteria that distinguish successful from unsuccessful writing requirements. Our theory also explains when the promissory estoppel doctrine should serve as an ameliorating tool for people who fail to make a contract they intended to enter because they fail to satisfy a writing requirement. It explains why strict adherence to a writing requirement is justified for consumer contracts with significant personal stakes, while promissory estoppel should apply (as, unfortunately, it does not) when employees rely on oral promises for job security.