Defects of consent in English law: protecting the bargain?
In English law, a voluntary and free consent is clearly regarded as essential for a valid contract to be formed. In consequence, mechanisms have therefore developed to protect against a defective consent, but they have done so in a piecemeal fashion, in law and in equity. In spite of this lack of a unified theory of defects of consent, the existing mechanisms can nevertheless be broadly categorized between those, which protect against the absence of consent and those, which protect against an impaired consent. Although both mechanisms are linked by a common aim to protect the integrity of the consent, they are nevertheless distinct theories and give rise to distinct consequences. Given the place and importance of such mechanisms in the law of contract, one must enquire about their underlying policy and aims. Do they merely reflect the general principle that contractual obligations are voluntarily assumed or do they reflect wider considerations such as addressing the imbalance of the contract itself? If the latter, how are they justified?This chapter addresses such a debate, which,although not new, is still highly relevant. Indeed, following the increasing specialization of contracts (partly as a result of the European legislation), the question of the role and place for defects of consent must be considered and is the aim of this chapter.
This is a draft of a chapter that has been accepted for publication by Oxford University Press in the forthcoming book Comparative Contract Law: British and American Perspectives, edited by Martin Hogg and Larry Di Matteo. It has been submitted in line with the publisher's pre publication author reuse and self archiving policy