Chapter 4: Substantive inequality to contract?
Contracting is the making and keeping of promises. The images of contract as a relationship of liberty and social mutualisation, discussed in Chapter 3, rely on contracting serving two ideal functions in providing a guarantee of: a) equivalent exchange, and b) liberty, since contractual relations are voluntary and free from coercion. In such a setting of mutuality (legalised or otherwise), contract characterises a new form of social sustainability. Almost mystically, justice is conceived in contractual bonding as reflected through equal liberty to contract and the shared and consensual adoption of individualised obligations. The common law principles of contract law represent similar contextual and functional arrangements. In searching for the core elements of contracting principle it is easy to be distracted by the proliferation of commentary which deems principle to be process. The normative foundations for contracting are what should explain the essential steps in the process which keep it in line with this central principle. The governing intent behind contracting is that people should only be bound to promises which they entered into having the capacity to consent, the knowledge of what it is they are consenting to and that their consent is actual and not unjustly procured. This chapter has two clear intentions. First will be the exploration of the dissonance between contracting principle and the practice of contract law, as it has evolved along with the emergence of fictional assets. The examination of this contradiction is the more straightforward task.
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