Research Paper Number

53/2014

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2014

Keywords

contract theory; voluntary obligation; intention; disclaimer

Abstract

Contractual obligations are traditionally regarded as voluntary. A voluntary obligation is one that can be acquired only if one intends to acquire it. This traditional understanding finds doctrinal expression in the requirement that contracting parties intend to create legal relations. It has, however, been doubted that the Anglo-Canadian law of contract insists on this requirement. Skeptics argue that cases ostensibly decided on the basis of such a requirement are better explained otherwise. In this paper I invoke the legal force of contractual disclaimers to show that contractual obligations are indeed voluntary. When parties to an agreement purport to exclude it from the reach of the law by expressly disavowing an intention to bind themselves legally, they have issued a disclaimer. An unambiguous disclaimer will preclude an agreement from being enforced as a contract. Contractual obligations are thus “disclaimer-sensitive”. I argue that this striking feature of contractual obligations can be plausibly explained only if contractual obligations are voluntary.

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