Document Type
Book Chapter
Publication Date
6-2026
Abstract
Contract disclosure rules differ in structure, function, and design. Though scholars often treat all these rules under the rubric of duty, in fact they fall into two broad categories. Disclosure duties treat the failure to disclose as a legal wrong; disclosure responsibilities attach positive legal consequences to disclosure but do not treat nondisclosure as a legal wrong. Disclosure duties can be further divided. 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 broad standards for what gets disclosed, and 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 that they will suffer unusually high losses from breach enables them to recover for such losses. Other disclosure responsibilities affect whether the contract is voidable or not. The nondisclosure defense falls into this category. The chapter examines 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 novel claim is that the nondisclosure defense does not involve a duty to disclose, but is better understood as of a piece with the equitable defense of mistake.
Publication Citation
Forthcoming in: Oxford Handbook of Regulatory Contract Law (Yesim Atamer & Alexander Hellgardt eds., OUP).
Scholarly Commons Citation
Klass, Gregory, "Disclosure Duties and Responsibilities" (2026). Georgetown Law Faculty Publications and Other Works. 2676.
https://scholarship.law.georgetown.edu/facpub/2676