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The No Retraction Principle and the Morality of Negotiations, 152 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1903 (2004)


The central philosophical puzzle about contract law involves the ground upon which contractual obligation arises. Omri Ben-Shahar's intriguing essay, Contracts Without Consent: Exploring a New Basis for Contractual Liability, proposes a new theory of contractual liability and contains the seeds of an appealing new approach to this puzzle. In place of the traditional agreement-based conception of contractual liability under which, as Ben-Shahar says, "a contract forms only when the positions of the two parties meet, Ben-Shahar proposes a new regime. His proposal imagines that offers and counteroffers generate a converging sequence of liability, under the principle that "[a] party who manifests a willingness to enter into a contract at given terms should not be able to freely retract from her manifestation." Ben-Shahar's contribution to the philosophical foundations of contract does not figure prominently in his own presentation of this principle of "noretraction," however, which emphasizes an economic approach. Indeed, Ben-Shahar expressly admits that "[i]t is beyond the scope of [his] Essay to inquire into the philosophical underpinnings of the non-rejectability of an individual's own representations." I shall therefore devote these pages to bringing out some of the philosophical ideas that are immanent in Ben-Shahar's view but that are not emphasized in his own account of this view. Although these ideas differ markedly from my approach to the philosophical foundations of contract, I shall not, in the main, try to test Ben-Shahar's views against my own. I prefer, instead, to present a sympathetic reconstruction of Ben-Shahar's position.

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