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The law of undisclosed agency has long been considered an anomaly of contract theory. While few disapprove of its content, this body of law does not appear to square with our theoretical understanding of contractual obligation. In this Article, Professor Barnett applies a "consent theory of contract" to explain and critically evaluate the law of undisclosed agency. After showing why standard contract theories have been unable to explain the established doctrine in this area, he analyzes the nexus of obligations arising from the consensual "triangular flow of rights" among the three parties to the paradigm undisclosed agency relationship. He then extends this analysis to treat several "hard cases. " Professor Barnett concludes that the bulk of this spontaneously evolved body of law is theoretically sound; that the source of the long-standing apparent anomaly is the predominance of the promise-based theory underlying the action of assumpsit; and that judges' ability to develop good law in spite of the deficiencies in the prevailing contract theories provides an insight into the appropriate roles of tradition and reason in generating law.

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Randy E. Barnett, Squaring Undisclosed Agency Law with Contract Theory, 75 Cal. L. Rev. 1969 (1987).

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Contracts Commons