Mutual assent versus gradual ascent: the debate over the right to retract.

• Author: Ben-Shahar, Omri
• Position: Response to articles in this issue, p. 1873, 1903, 1923

I ended Contracts Without Consent: Exploring a New Basis for Contract Liability (1) with a reminder that the analysis was "lacking in rigor and in nuance" (2) and that "[i]t remains for future work to explore the extent to which the approach developed ... has the horsepower to resolve pragmatically the problems that have proven difficult for current doctrine and to examine whether these solutions advance the various social objectives associated with contract formation." (3)

Such "future work" arrived sooner than I expected. I have now had the privilege to read the three commentaries that the University of Pennsylvania Law Review solicited, three razor-sharp critiques, producing precisely what I hoped would follow: an exploration, balanced with both theoretical nuance and empirical pragmatism, of the implications that flow from the no-retraction regime. And I may ultimately have to concede that much is still unresolved (or at least not convincingly resolved) by the proposed regime. But before we reembrace the traditional way of thinking about contracts, it may be worth our while to take a moment to understand the scope and the validity of the critiques and to determine whether a fine-tuned account of the no-retraction regime emerges with the aid of such understanding.

The commentaries to Contracts Without Consent occupy a continuum between the curious and the angry. On the one hand, it is viewed charitably as an "intriguing" (4) and "appealing new approach," (5) embraced as a potential "new and promising beginning" (6) of what can be called the law of negotiations (albeit a crude beginning). On the other hand, it is rejected as "conceptually confusing, practically impossible, and instrumentally unwise" (7)--an "ultimately disastrous" (8) liability regime. My purpose here, in the brief final words that the editors of the University of Pennsylvania Law Review have accorded me, is not to quiet the many tones of disagreement, but rather, to amplify them. I will try to use the commentators' own claims to show where the promise of my regime lies and to demonstrate how best to understand the weight of their critiques. Thus, in the next few paragraphs, I do not intend to respond to every difficulty identified by my critics, to show why they might be wrong (or perhaps right). Instead, I hope to highlight the main themes that all of the comments share and to briefly discuss what can be learned from these themes.

Many of the critiques of the no-retraction regime, when examined in isolation, seem powerful. But often, the very strength of one critique is based on premises that suggest a weakness of, or even a response to, another critique. Unlike in litigation, where a good attorney argues in the alternative--where what matters is that each argument has independent merit--here the mutual contradiction may undermine the appeal of the critics' bottom line.

Consider the following example. One major theme pursued by large sections of the critiques is that the no-retraction regime is so inconsistent with current practices of contracting that it would lead to "disastrous" outcomes or, at the very least, to ordinary opt-out. (9) This argument--let us call it the "disaster argument"--suggests that a no-retraction liability regime is at odds with existing practices to such an extent that it would cause people to change their negotiating practices in a dramatic and costly fashion. (10) At the same time, another line of argument espoused by other sections of the critiques points out that the no-retraction regime is not such a revolutionary departure from current doctrine as it assigns liability in places where, by and large, it already exists. (11) This argument--let us call it the "redundancy argument"--suggests that the legal consequences of the no-retraction regime are often so similar to those of the current mutual assent regime that the difference between the two regimes is hardly detectable, and therefore, little value exists in replacing the traditional foundations with new, redundant ones.

While much can be said in support of each of these two critical arguments, it is striking that the disaster argument and the redundancy argument cannot both be valid at the same time. If the no-retraction regime, by creating liability without consent, "turn[s] contract law upside down," as Jason Johnston fears, (12) how could it be that parties are already regularly subject to liability so similar that "little can be gained by adopting this new regime?" (13) If indeed disastrous, how could the no-retraction regime be "not substantially different from ... current law," (14) which, all commentators agree, already provides "enormously powerful" liability prior to consent? (15)

More specifically, the critiques present...