Contracts require consent, yet no one reads form contracts. So what do we consent to when we consent to form contracts? Scholarly answers to this question range from “we consent to everything but the radically unexpected” to “we consent to nothing but the specifically negotiated.” This essay offers a new answer: when we consent to form contracts we consent to pay market price. Part I of this essay discusses Randy Barnett's argument that consent to form contracts is consent to be legally bound, which raises the question of whether there are any limits on what can be consented to via form contract. Part II discusses Carnival Cruise Lines v. Shute as illustrative of Barnett's theory and argues that Carnival's approach should be rejected. Part III of this essay argues that consent to form contracts should be construed as consent to pay market price.

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract possible and freedom of contract generates variation in transactional structures. In effect, it creates a store of possible solutions to problems of social organization. Second, consent is one method among several by which "bad" solutions are weeded out and "good" solutions are selected. However, consent is not the only-or in many cases even the primary-feedback mechanism for transactional structures. Hence, in many situations we are comfortable enforcing contracts where consent is formal at best and the voluntariness of contracting parties is open to serious doubt. This is because there are other mechanisms that mitigate against pathological transactional forms. Ultimately "meaningful consent" is not a necessary condition for the normative justification of contractual enforcement. Applying this model to boilerplate contracts explains why we are justified in enforcing agreements where consent may be attenuated and very imperfectly informed. The voluminous criticism of these agreements shares the common assumption that robust voluntary consent is a necessary condition for the normative justification of contract law. This basic assumption, however, is mistaken.

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent. This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version of the concept. Psychologists use the “availability heuristic” to describe how we rely on salient facts when making quick probabilistic judgments. Similarly, the availability of some facts but not others prompts us to default to the version of an ambiguous moral concept that we are in a position to operationalize. On the flip side, we discount understandings of consent that fail to guide us given the facts we know.The distinct sets of facts available to the giver and receiver of consent, respectively, thus direct them to rely on different conceptions of consent, thereby driving a systematic wedge between how parties to exchange are likely to understand the bindingness of their agreement. Contract law privileges a single, potentially unifying conception of consent; but that conception must compete with the complex understanding of the concept that we each bring from our lives outside of contract. Without the benefit of clear legal rules, consent in other social contexts generates still more frequent and deeper disagreement.

What exactly is consent? Why does it matter? How can you respect other people’s boundaries, and have them respect yours? Can We Talk About Consent? breaks down the basics of how to give and get consent in every aspect of life for readers aged 14 years and older. It's a powerful word, but not everyone understands exactly what it means. This stylish guide explains clearly why consent matters—for all of us. With honest explanations by experienced sex and relationships educator Justin Hancock, you'll learn how consent is a vital part of how we connect with ourselves and our self-esteem, the people close to us, and the wider world. The book covers a broad range of topics, including: how we greet each other how to choose things for ourselves how we say no to things communicating and respecting choices in sexual relationships the factors that can affect a person's ability to choose how to empower other people by giving them consent And—there's a whole lot of pizza. This guide to consent gives you all the tools you need to build consensual relationships.

Did you read the small print when you signed for your latest mobile phone contract? No, I didn't think so. When you come to sign contracts of this sort, you soon realise that there is very little negotiation, and you know very little about the contents of the contract. This book explores the implications of standard form contracts, and how their current structure leaves consumers very much in the dark about the terms. This book also explores how the Internet has contributed to complicating these contentious issues, and what possible solutions could be implemented in order to protect consumer rights.

Problems regarding the nature of consent are at the heart of many of today's most pressing issues. For example, the #MeToo movement has underscored the need to move beyond viewing consent as a simple matter of yes or no. Consent is complex because humans and their relationships are complicated. Humans, as a result of cognitive limitations and emotional and physical vulnerabilities, are susceptible to manipulation and mistakes. Given the potential for regret, are there some things to which one should not be permitted to consent? The consentability quandary becomes more urgent with technological advances. Should we allow body hacking? Cryonics? Consumer travel to Mars? Assisted suicide? In Consentability: Consent and Its Limits, Nancy S. Kim proposes a bold, original framework for evaluating consentability, which considers the complexities surrounding consent.

Consent, a powerful concept that lies at the heart of contract law, has received a great amount of scholarly attention. Recently, some contract law scholars have been criticizing consent and suggesting alternative concepts. Contrary to this approach, this Article offers a nuanced description of consent that could pave the way for a better application of consent in contract law. At present, courts ascribe only a narrow meaning to consent, namely, that consent is either informed and freely given, or it is not. However, consent is not simply a “yes or no” question; consent is more complex than such an analysis suggests and can be both gradual and continuous. Rejecting a binary framework which views consent as an on/off concept, this Article asserts that consent is better understood as a spectrum that ranges from “no consent” to “solid consent,” and that contains many gray areas in between. These gray areas include, but are not limited to, hesitation, deliberation, negotiations, mixed feelings and reservations. Further complicating the matter is the fact that consent is often contextual. Consent is shaped by the relationship between the consenter and the consentee. Factors of power, intimacy, trust, arm's length relations and more all differently influence consent. Moreover, consent is socially constructed. Factors such as gender, race and class directly influence the choices and constraints present for both parties in the background of a consensual decision, as do factors such as social context and policy considerations. Consent must be recognized as deriving not only from the individual mindsets of the parties, but also from the relevant public and social circumstances. As such, consent to a prenuptial agreement, consent to an employment agreement and consent to a consumer contract must be recognized as distinct from one another, in that they are shaped by their unique social contexts. By exploring the many shades of consent, this Article may serve as a starting point in the development of a diverse and heterogenic yet useful and practical concept of consent.