Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud
The author begins by responding to Coleman's rational choice approach to choosing default rules. In part I, he applies the expanded analysis of contractual consent and default rules that he had recently presented elsewhere to explain how rational bargaining, hypothetical consent, and actual consent figure in the determination of contractual default rules. Whereas Coleman advocates the centrality of rational bargaining analysis to this determination, the author explains why rational bargaining theory's role must be subsidiary to that of consent.
The author then turns his attention to Coleman's appraisal of contracting parties' duty to disclose information concerning the resources that are the subject of a contractual transfer. In part II, he argues that both Coleman's and Anthony Kronman's analyses of John Marshall's opinion in the classic case of Laidlaw v. Organ overlook an important function of his holding permitting nondisclosure. The author concludes by proposing a conception of fraud that explains why trading on and profiting from certain types of undisclosed information is not properly deemed fraudulent.
15 Harv. J. L. & Pub. Pol’y 783-803 (1992)
Scholarly Commons Citation
Barnett, Randy E., "Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud" (1992). Georgetown Law Faculty Publications and Other Works. 1261.