Document Type
Article
Publication Date
8-2025
Abstract
This chapter, to appear in the Oxford Handbook of Regulatory Contract Law, examines the law governing factual disclosures between contracting parties. Much of the scholarship addresses whether or when parties have a duty to disclose. Yet many disclosure rules, including the much-discussed nondisclosure defense, do not involve duties proper. In fact, those rules vary considerably in structure, function, and design.
Contract disclosure rules fall into two broad categories: disclosure duties, which treat the failure to disclose as a legal wrong, and disclosure responsibilities (what German jurists call “Obliegenheiten”), which attach positive legal consequences to disclosure but do not treat nondisclosure as a violation. Disclosure duties can be further categorized. Specified disclosure duties, which typically apply to consumer and other mass-market transactions, provide detailed guidance regarding both what information to disclose and how to disclose it. Generic disclosure duties, such as the tort of nondisclosure, provide intead broad standards for what gets disclosed, though they importantly often come with strong scienter requirements. Disclosure responsibilities also come in different varieties. Some affect the terms of a contract. The foreseeability (Hadley) rule, for example, provides that a party’s disclosure at the time of formation of probable unusually high losses from breach alters whether they can recover for such losses. Other disclosure responsibilities affect whether the contract is voidable or not. The nondisclosure defense falls into this category.
The chapter discusses each variety of disclosure rules. It argues that different types of rules serve very different functions and are for this reason subject to differing design constraints. Perhaps the most radical claim is that the nondisclosure defense is best understood not as an independent defense, but as an important equitable consideration in mistake cases.
Publication Citation
Gregory Klass, Disclosure, forthcoming in Oxford Handbook of Regulatory Contract Law (Yesim Atamer & Alexander Hellgardt eds., OUP).
Scholarly Commons Citation
Klass, Gregory, "Disclosure" (2025). Georgetown Law Faculty Publications and Other Works. 2676.
https://scholarship.law.georgetown.edu/facpub/2676