The Limits of Freedom of Contract

Abstract

The American legal system is committed to the idea that private markets and the law of contracts that supports them are the primary institutions for allocating goods and services in a modern economy. Yet the market paradigm, this book argues, leaves substantial room for challenge. For example, should people be permitted to buy and sell blood, bodily organs, surrogate babies, pornography, or sexual favours? Is it fair to allow people with limited knowledge about a transaction and its consequences to enter into it without guidance from experts? Finally, do people always know their own preferences, many of which may be socially conditioned? These are only a few of the issues Michael Trebilcock explores in this sweeping analysis of the private ordering model of contract law and the major theoretical camps critiquing it, including the communitarian and the feminist. He examines the implication that the private ordering paradigm simultaneously promotes both autonomy and welfare values, and argues that in many contexts the convergence of these values is much more contestable than its proponents claim. The book treats all the conflicting perspectives with care, acknowledging both their strengths and weaknesses, and using them to illuminate many specific dilemmas. Trebilcock also pays close attention to how various theories may be translated into practice, revealing that ideas that appear to oppose each other at the abstract level are in fact very similar when implemented at the institutional level. In conclusion, Trebilcock argues that we need to be more alert to the possibility of adopting public policies that broaden access to market opportunities for the disadvantaged.

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