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In Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, Peter Benson criticizes the authors presentation of a consent theory of contract, in part, on the ground that it "refers only to the empirical facts of the requirements of human needs and fulfillment. Like [Charles] Fried's [account], his conception of the consensual basis of a contract does not preserve the required standpoint of abstraction. " On this basis Professor Benson concludes that the author's approach fails to "provide an adequate elucidation of a nondistributive conception of contract.

By explaining contractual obligation as intelligible ownership based in a relation of wills, independent of the content of those wills, Professor Benson's approach can be viewed as formal or abstract. In contrast, the author's account of a consent theory of contract has been twofold: (a) by understanding contractual obligation as arising when persons manifest an intention to transfer alienable rights, a consent theory of contract (as compared with other available theories) helps us to better understand and sometimes to modify such problematic contract doctrines as the objective interpretation of consent, promissory estoppel, specific performance, and undisclosed agency; (b) this criteria of contractual obligation plays an important social function and is ignored at our peril. Benson does not address the first more explanatory and reformatory aspect of the author's presentation of a consent theory of contract; it is the second of these two aspects of the author's presentation that Benson characterizes as empirical and insufficiently abstract.

Professor Benson takes a Hegelian approach that the author states he is not qualified to evaluate from within. In this essay the author assumes arguendo that both Hegelian legal theory and Benson's use of it are sound. However, without questioning either the merits of Benson's analysis or the methodology he employs, the author thinks that elaborating a distinction between internal and external conceptual analyses will permit him to put both Benson's presentation and his criticism of the author's in perspective.

Publication Citation

11 Cardozo L. Rev. 525-535 (1990)