Would Reasonable People Endorse a 'Content-Neutral' Law of Contract?

In: European review of contract law: ERCL, Band 17, Heft 2, S. 245-255

Abstract

Abstract
This essay raises two challenges to Peter Benson's compelling new account of contract law. First, I argue that Benson's use of the concept of reasonableness goes beyond the Rawlsian account to require that we impute to others a capacity to transcend their contingent circumstances in the context of contractual choice. In fact, our choices in contract are driven by external contingencies and it is only reasonable to take those constrains on other people's choices into account. Second, I contest Benson's related claim that contract law should be, and largely is, content-neutral. I argue to the contrary that the justice of a society depends on the cumulative outcomes from market transactions, and the justice of transactions depends on the justice of the institutional matrix of which transactional law is one part.