The objective theory of contracts

University of Cincinnati Law Review

Volumn 76, Issue 4, 2008, Pages 1119-1158

  Barnes, Wayne ^a  

^a TEXAS WESLEYAN UNIVERSITY   (United States)

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EID: 52449100446     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (201)

1. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 309 (Dover Publ'ns, Inc. 1991) (1881) ("The law has nothing to do with the actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct.").
2. See Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lon Fuller's "Consideration and Form," 100 COLUM. L. REV. 94, 129-30 (2000) (describing history of development of objective theory).
3. JOSEPH M. PERILLO, CALAMARI AND PERILLO ON CONTRACTS § 2.2, at 27 (5th ed. 2003) (citing Ricketts v. Pa. R.R., 153 F.2d 757, 760-61 (2d Cir. 1946) (Frank, J., concurring)).
4. Joseph M. Perillo, The Origins of the Objective Theory of Contract Formation and Interpretation, 69 FORDHAM L. REV. 427, 428 (2000).
5. Id. at 428-29. Professor Perillo states that the objective theory became permanently dominant when most jurisdictions changed the rules of procedure to allow litigants to testify for themselves. Id.
6. See PERILLO, supra note 3, § 1.4, at 6-13.
7. This Article is concerned solely with contract formation-that is, whether or not a contract has ostensibly been formed in the first place by the appearance of mutual assent. It is not concerned with various defenses to the enforceability of a contract which has otherwise been formed, such as mistake, misrepresentation, and duress. These defenses appropriately rely on an examination into the parties' subjective understandings. See RESTATEMENT (SECOND) OF CONTRACTS §§ 151-76 (1981); see also Perillo, supra note 4, at 428 ("Subjective approaches did ... transform the availability of relief for mistake, duress, and other grounds of avoidance."); 1 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS §4:1, at 335 (4th ed. 2007) ("By contrast, courts exercising equitable jurisdiction have not shown the same indifference to the undisclosed intention of the parties as have courts of law; but insofar as the concern is with the rules of law governing the formation of contracts, not with whether contracts so formed are or might be subject to reformation or rescission in equity, that distinction is not important.").
8. See RESTATEMENT (SECOND) OF CONTRACTS § 48. Actually, the rule as formulated by the Restatement provides that death of either the offeror or the offeree terminates the offer. Id.
9. See RESTATEMENT (SECOND) OF CONTRACTS § 63(a); Adams v. Lindsell, 106 Eng. Rep. 250 (K.B. 1818).
10. See RESTATEMENT (SECOND) OF CONTRACTS §211; JOSEPH M. PERILLO, 7 CORBIN ON CONTRACTS § 29.8, at 402 (rev. ed. 2002) (describing the traditional "duty to read" rule regarding standard form contracts and its relationship to the objective theory of contracts).
11. See infra notes 81-101 and accompanying text.
12. See infra notes 116-144 and accompanying text.
13. See infra notes 160-187 and accompanying text.
14. See infra notes 19-80 and accompanying text.
15. See infra notes 81-115 and accompanying text.
16. See infra notes 116-159 and accompanying text.
17. See infra notes 160-198 and accompanying text.
18. See infra notes 199-201 and accompanying text.
19. See generally Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986).
20. PERILLO, supra note 3, § 1.1, at 2.
21. RESTATEMENT (SECOND) OF CONTRACTS §3(1981).
22. Id. §§ 17-70.
23. See Newman v. Schiff, 778 F.2d 460, 464 (8th Cir. 1985) (citing MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 180-88 (1977); Samuel Williston, Mutual Assent in the Formation of Contracts, 14 ILL. L. REV. 85 (1919); Ricketts v. Pa. R.R., 153 F.2d 757, 760 (2d Cir. 1946) (Frank, J., concurring)).
24. Newman, 778 F.2d at 464; PERLLLO, supra note 3, § 2.2, at 26-27 ("A debate has raged as to whether the assent of the parties should be actual mental assent so that there is a 'meeting of the minds' or whether assent should be determined solely from objective manifestations of intent-namely what a party says and does rather than what a party subjectively intends or believes or assumes." (footnote omitted)); Ricketts, 153 F.2d at 760-61 (Frank., J., concurring) ("In the early days of this century a struggle went on between the respective proponents of two theories of contracts, (a) the 'actual intent' theory-or 'meeting of the minds' or 'will' theory-and (b) the so-called Objective' theory."); 1 E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS § 3.6, at 208 (3d ed. 2004) ("This question provoked one of the most significant doctrinal struggles in the development of contract law, that between the subjective and objective theories."); JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS § 30, at 62 (4th ed. 2001) ("[A] great deal of controversy was spawned over the question of whether the actual mental assent (subjective) of the parties was required, or whether the expression or manifestation of that assent (objective) would control regardless of any subjective intention."); Herman Oliphant, The Duration and Termination of an Offer, 18 MICH. L. REV. 201, 201 (1920) ("P[rofessor] Williston has recently pointed out the change which the law of the formation of simple contracts underwent during the first century of its development. The change is fundamental. Originally the courts thought of a simple contract as involving an actual concurrence of the minds of the parties. Gradually this conception was supplanted by the notion that the objective and not the subjective state of mind of the parties is controlling." (footnote omitted) (citing Williston, supra note 23)).
25. See Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 898 (1992) ("A 'will theory' traces the obligatory nature of contracts to the fact that parties have subjectively chosen to assume an obligation. According to this conception of consent, when one does not subjectively consent one has not 'really' consented." (footnote omitted)).
26. Newman, 778 F.2d at 464 (footnote omitted) (citing HORWITZ, supra note 23, at 180-88; Williston, supra note 23; Ricketts, 153 F.2d at 760 (Frank, J., concurring)). As Professor Farnsworth states in his treatise: The subjectivists looked to the actual or subjective intentions of the parties. The subjectivists did not go so far as to advocate that subjective assent alone was sufficient to make a contract. Even under the subjective theory there had to be some manifestation of assent. But actual assent to the agreement on the part of both parties was necessary, and without it there could be no contract. In the much-abused metaphor, there had to be a "meeting of the minds." 1 FARNSWORTH, supra note 24, § 3.6, at 208-09 (footnote omitted).
27. Newman, 778 F.2d at 464.
28. Hotchkiss v. Nat'1 City Bank, 200 F. 287, 293 (S.D.N.Y. 1911).
29. HOLMES, supra note 1, at 309.
30. C.C. LANGDELL, A SUMMARY OF THE LAW OF CONTRACTS 244 (2d ed. 1880).
31. Skycom Corp. v. Telstar Corp., 813 F.2d 810, 814(7thCir. 1987).
32. Newman, 778 F.2d at 465 ("By the end of the nineteenth century the objective approach to the mutual assent requirement had become predominant, and courts continue to use it today." (citing E. ALLAN FARNSWORTH, CONTRACTS § 3.6, at 114 (1982))); Ricketts v. Pa. R.R., 153 F.2d 757, 761-62 (2d Cir. 1946) (Frank, J., concurring) ("At any rate, the sponsors of complete Objectivity' in contracts largely won out in the wider generalizations of the Restatement of Contracts and in some judicial pronouncements." (footnotes omitted) (citing SAMUEL WILLISTON, CONTRACTS § 35 (rev. ed. 1936); RESTATEMENT OF SECURITY §§ 70, 71, 503 (1941); Hotchkiss, 200 F. at 293)). In his treatise on contract law, Professor Murray states the resolution in favor of objective theory as follows: The controversy has been resolved. Contract law abandoned the theory of subjective intention as unworkable. A legion of cases support the view that the outward manifestations of the parties-their expressions-will be viewed as the exclusive evidence of the parties' intentions rather than assertions of their subjective intention.... There can be no doubt... that the objective theory is clearly established throughout the country. MURRAY, supra note 24, § 30, at 63-64 (citations omitted).
33. Perillo, supra note 4, at 427-29 (citing LAWRENCE M. FRIEDMAN, CONTRACT LAW IN AMERICA 87 (1965); HORWITZ, supra note 23; GRANT GILMORE, THE DEATH OF CONTRACT 12 (1974)). Perillo stated that he was sometimes stunned by generalizations such as this one: "A standard history of contract doctrine represents that, from the sixteenth to the early nineteenth century, contract formation depended upon a subjective 'meeting of the minds.'" Perillo, supra note 4, at 428 n.ll (alteration in original) (quoting Clare Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1042 (1985)).
34. Perillo, supra note 4, at 428.
35. Id.
36. PERILLO, supra note 3, § 2.2, at 27. Professor Perillo has noted that, historically, courts have used three different approaches to contractual intent. First is the "medieval" objective approach, which is purely objective and does not take the individual knowledge of the other party into account at all. Randy E. Barnett, Consenting to Form Contracts, 71 FORDHAM L. REV. 627, 628 (2002) (citing Joseph M. Perillo, The Origins of the Objective Theory of Contract Formation and Interpretation, 69 FORDHAM L. REV. 427, 451 (2000)). The second approach is a purely subjective one, not taking into account any objective viewpoint. Id. The third approach is the modern one, which is a modified objective approach, which also takes into account any superior knowledge held by the other party. Id. at 629.
37. Michael I. Meyerson, The Reunification of Contract Law: The Objective Theory of Consumer Form Contracts, 47 U. MIAMI L. REV. 1263, 1266 & n.16 (1993) ("In the formation of contracts it was long ago settled that secret intent was immaterial; only overt acts being considered in the determination of such mutual assent as that branch of law requires." (quoting 1 SAMUEL WILLISTON, THE LAW OF CONTRACTS §26 (1920))).
38. HOLMES, supra note 1, at 307.
39. PERILLO, supra note 3, § 2.2, at 28.
40. See Ricketts v. Pa. R.R., 153 F.2d 757, 761 (2d Cir. 1946) (Frank, J., concurring) ("The objectivists transferred from the field of torts that stubborn anti-subjectivist, the 'reasonable man'. . . . ").
41. See PERILLO, supra note 3, § 2.3, at 28-29.
42. 84 S.E.2d 516 (Va. 1954).
43. Id. at 517-19.
44. Id. at 518.
45. Id. at 518-19.
46. Id. 31519-20.
47. Id. at 521-22.
48. Id.
49. The testimony also indicated that both Lucy and Zehmer had been drinking before and during the negotiation, id. at 518-20. However, the court found that both parties nevertheless comprehended the meaning of their actions and thus possessed sufficient capacity to contract. Id. at 521-22.
50. 88 F. Supp. 2d 116(S.D.N.Y. 1999), aff'd, 210 F.3d 88 (2d Cir. 2000).
51. Id. at 118-19.
52. Id.
53. Id. at 120.
54. Id. at 119. Leonard did not actually drink the millions of Pepsis required to obtain the points. Id. Rather, he discovered that Pepsi would sell the points for 10 cents each, and therefore he submitted a check for approximately $700,000, to buy the points and thereby redeem a Harrier jet. Id.
55. Id. at 127-30.
56. Id. In a wonderful part of the opinion, the court said that Plaintiffs insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, "Humor can be dissected, as a frog can, but the thing dies in the process ...." Id. at 128 (alteration in original) (quoting GERALD R, FORD, HUMOR AND THE PRESIDENCY 23 (1987)).
57. Id. at 127-30.
58. See PERILLO, supra note 3, § 2.2, at 27.
59. See THERON METCALF, PRINCIPLES OF THE LAW OF CONTRACTS, AS APPLIED BY COURTS OF LAW 14 (1874) ("There must necessarily be some medium of communication, by which the 'union of minds' may be ascertained and manifested. Among men, this medium is language, symbolical, oral, or written. A proposal is made by one party, and is acceded to by the other, in some kind of language mutually intelligible; and this is mutual assent. Persons who are deaf and dumb contract only by symbolical or written language. The language of contracts at auction is often wholly symbolical. A nod or wink by one party, and a blow of a hammer given by the other, evince mutual assent.").
60. MURRAY, supra note 24, § 30, at 62.
61. LAURENCE P. SIMPSON, HANDBOOK OF THE LAW OF CONTRACTS § 9, at 9 (2d ed. 1965).
62. MURRAY, supra note 24, § 30, at 62.
63. PERILLO, supra note 3, § 1.4(d), at 9; see also WILLISTON & LORD, supra note 7, § 4:1, at 334-35 ("[T]he fundamental basis of contract in the common law is reliance on an outward act (that is, a promise), as may be seen by the early development of the law of consideration as compared with that of mutual assent.").
64. MURRAY, supra note 24, § 30, at 62.
65. Id.
66. See Samuel Williston, Freedom of Contract, 6 CORNELL L.Q. 365, 368 (1921) ("[T]he fundamental idea on which the action of assumpsit and the development of simple contracts rested, was that reliance on a promise - the reliance being induced by the promisor's request of an act or counter-promise of the other party - caused an obligation to arise.").
67. See RESTATEMENT (SECOND) OF CONTRACTS § 71 (1981) ("(1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange fur that promise.").
68. Daniel P. O'Gorman, A State of Disarray: The "Knowing and Voluntary" Standard for Releasing Claims Under Title VII of the Civil Rights Act of 1964, 8 U. PA. J. LAB. & EMP. L. 73, 111-12 (2005) (quoting JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS 25 (2d ed. 1977)). 69. See Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989) ("[I]f intent were wholly subjective ... no one could know the effect of a commercial transaction until years after the documents were inked. That would be a devastating blow to business."); Ricketts v. Pa. R.R., 153 F.2d 757, 761 n.2 (2d Cir. 1946) (Frank, J., concurring) ("The 'actual intent' theory, said the objectivists, being 'subjective' and putting too much stress on unique individual motivations, would destroy that legal certainty and stability which a modern commercial society demands. They depicted the Objective' standard as a necessary adjunct of a 'free enterprise' economic system.").
69. See generally Barnett, supra note 19.
70. See Williston, supra note 66, at 373 ("As theories of individual freedom thus seemed to require that no obligations or defences to obligations should be allowed unless willed by the parties, so on the other hand the same theories led to opposition to restrictions being placed on the kind of contracts which they in fact did will.").
71. PERILLO, supra note 3, § 1.4(c), at 8 ("[I]nsofar as the law of contract places the coercions of the legal order behind the terms of a contract settled by private parties, the legal order may and indeed should set socially approved limits to the support which it gives to the terms which one party is in a position to impose on the other." (alteration in original) (quoting JULIUS STONE, SOCIAL DIMENSIONS OF LAW AND JUSTICE 253 (1966))).
72. Perillo, supra note 4, at 427.
73. Larry A. DiMatteo & Brace Louis Rich, A Consent Theory of Unconscionability: An Empirical Study of Law in Action, 33 FLA. ST. U. L. REV. 1067, 1111 (2006); see also Kennedy, supra note 2, at 131 (citing Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941)).
74. See Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989).
75. PERILLO, supra note 3, § 2.2, at 28.
76. Id.
77. See RESTATEMENT (SECOND) OF CONTRACTS § 24 (1981) ("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it."); see also id. § 50(3) ("Acceptance by a promise requires that the offeree complete every act essential to the making of the promise.").
78. SIMPSON, supra note 61. §9, at 9.
79. Perillo, supra note 4, at 428.
80. MURRAY, supra note 24, § 42(E) at 124; PERILLO, supra note 3, § 2.20(c), at 92-93; Oliphant, supra note 24, at 209; Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L.J. 169, 198 (1917).
81. RESTATEMENT (SECOND) OF CONTRACTS § 48. Section 48 also provides that the offer is terminated when the offeree dies. Id. This situation does not necessarily implicate the same questions of objective theory and contract formation. Professor Ricks has made a similar conclusion: Death of offeree cases differ from death of offerer cases both factually and theoretically. The death of offeree cases are thought to rest on the quite reasonable notion that the offer is personal to the offeree, and not assignable, so that the death of the offeree leaves no one left to accept the offer. Of course, difficulties with this rationale exist. The rationale might over-emphasize the "personalness" of the offer to the offeree. Moreover, an agent whose agency was coupled with an interest could accept on the offeree's behalf, even though the offeree had died. This brief discussion proves that the policies animating the results in cases of death of the offeree differ from those animating cases involving death of the offerer.
82. Val D. Ricks, The Death of Offers, 79 IND. L.J. 667, 672-73 n.14 (2004) (citations omitted).
83. Corbin, supra note 81, at 198; Oliphant, supra note 24, at 210 ("The courts say that the reason the offer is terminated by the death of the offerer is obvious. A contract cannot be made with a dead man.").
84. Professor Ricks pinpoints the first mention of the rule in American caselaw to Mactier's Administrators v. Frith, in 1830. Ricks, supra note 82, at 673 (citing Mactier's Adm'rs v. Frith, 6 Wend. 103 (N.Y. 183O)). Mactier's cited the French commentator Robert Joseph Pothier for the rule. Id. (citing ROBERT JOSEPH POTHIER, TRAITÉ DU CONTRAT DE VENTE (1806)). Professor Ricks, after an exhaustive tracking down of the origins of the rule, concludes that "[t]he dying offer rule appears to be a rather textbook example of the kind of borrowing from Roman, natural law, and medieval philosophy described by James Gordley." Id. at 674 n.23 (citing JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE (1991)).
85. MURRAY, supra note 24, § 42(E), at 124.
86. RESTATEMENT (SECOND) OF CONTRACTS § 48 cmt. a.
87. See PERILLO, supra note 3, § 2.20(c), at 93 ("The majority view is a frequently criticized relic of the subjective theory. It does not conform to the objective theory because the offeree should be charged only with what the offeree knows or should know of the offerer's situation.").
88. Professor Ricks, in a fascinating part of his article, actually challenges this conventional thinking, noting that, as a purely factual matter, no one can say for sure whether A's soul - and thus his will - continues or not after physical death, and in the event that it does, whether it would be concerned with matters such as contracts and subjectively intending to carry them out. Ricks, supra note 82, at 675-76. Professor Ricks concedes the obvious evidentiary difficulties, and I do not address them further here.
89. HOLMES, supra note 1, at 306-07.
90. Professor Corbin, in his influential treatise on contracts, stated this about the rule: It is very generally said that the death of the offerer terminates the offeree's power of acceptance even though the offeree has no knowledge of such death. Such general statements arose out of the earlier notion that a contract cannot be made without an actual meeting of minds at a single moment of time, a notion that has long been abandoned. The rule has also been supposed to follow by some logical necessity from the dictum that it takes two persons to make a contract. It is not contrary to that dictum to deny that death terminates power to accept; the offer was made by a living man and is accepted by another living man. 1 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 54, at 227-28 (1963).
91. Ricks, supra note 82, at 676-77 (citing RESTATEMENT (SECOND) OF CONTRACTS § 48 cmt. a (1981)); 1 CORBIN, supra note 90, § 54, at 227 ("Such general statements arose out of the earlier notion that a contract cannot be made without an actual meeting of minds at a single moment of time, a notion that has long been abandoned."); E. ALLAN FARNSWORTH, CONTRACTS § 3.18 (3d ed. 1999); WILLISTON & LORD, supra note 7, § 5.19; MURRAY, supra note 24, § 42(E); PERILLO, supra note 3, §2.34; Oliphant, supra note 24, at 210 ("But no concurrence of wills is necessary."); W.J. Wagner, Some Problems of Revocation and Termination of Offers, 38 NOTRE DAME LAW. 138, 152 (1963); Chain v. Wilhelm, 84 F.2d 138, 140 (4th Cir. 1936) ("This rule has been criticized on the ground that under the modern view of the formation of contracts, it is not the actual meeting of the minds of the contracting parties that is the determining factor, but rather the apparent state of mind of the parties embodied in an expression of mutual consent; so that the acceptance by an offeree of an offer, which is apparently still open, should result in an enforceable contract notwithstanding the prior death of the offerer unknown to the offeree."), rev'd on other grounds, 300 U.S. 31 (1937); New Headley Tobacco Warehouse Co. v. Gentry's Ex'r, 212 S.W.2d 325, 327 (Ky. Ct. App. 1948) (same as Chain).
92. See 33 C.J.S. Executors and Administrators § 3 (2007) ("The estate of a deceased person is not an entity known to the law, and is not a natural or an artificial person, but is merely a name to indicate the sum total of assets and liabilities of a decedent," (footnotes omitted)).
93. Corbin, supra note 81, at 198.
94. See PERILLO, supra note 3, § 2.20(c), at 93 ("If B accepts before A dies, there is a contract. . . .").
95. Corbin, supra note 81, at 198.
96. RESTATEMENT (SECOND) OF CONTRACTS § 37 ("Notwithstanding §§ 38-49, the power of acceptance under an option contract is not terminated by rejection or counter-offer, by revocation, or by death or incapacity of the offeror, unless the requirements are met for the discharge of a contractual duty.").
97. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS §45(1) ("Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tenders a beginning of it."); U.C.C. § 2-205 (2003) ("An offer by a merchant to buy or sell goods in a signed record that by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may the period of irrevocability exceed three months.").
98. RESTATEMENT (SECOND) OF CONTRACTS §261.
99. Id. § 262.
100. Professor Val Ricks has written an excellent article on the "dying offer" problem, entitled The Death of Offers. Ricks, supra note 82. In his article, Professor Ricks argues that the dying offer rule, though incorrect in its assumption that subjective intent is required under modern contract law, nevertheless should be retained because it reaches a just result in most situations. Id. at 670. Ricks divides his analysis along three different fact scenarios which could arise: (a) when the offeree attempts to accept the offer or rely on it after receiving notice of the offerer's death, (b) when the offeree attempts to accept the offer before receiving notice of the offerer's death but in which no reliance on the offer occurs, and (c) when the offeree, before receiving notice of the offerer's death, reasonably incurs costs in reliance on the offer or on the offeree's reasonable belief in the existence of a completely formed contract. Id. at 670-71. For situations (a) and (b), most of Ricks' rationale is connected with problems caused by the offerer's death: the dead offerer can no longer perform, the offeree has no party to send an acceptance, the offeree can speculate since the offerer can no longer revoke, and the offerer no longer has any autonomy interests worthy of protection. Id. at 686-98. However, putting the estate into the position as the successor to the offerer solves most of these problems. Ricks also says that the dying offer rule is unjust in situation (c), but that courts could apply the principles of promissory estoppel to protect an offeree who has relied on the offer or promise of the deceased offerer. Id. at 700-05 (citing RESTATEMENT (SECOND) OF CONTRACTS § 90). While this is a wonderfully innovative and clever solution, it is unnecessary, since discarding the dying offer rule in the first place would also solve the problem in situation (c). Cf. Oliphant, supra note 24, at 210 ("It is no answer to say that the offeree can, in a proper case, recover on principles of quasi contracts because what is now being examined is the merit of this rule in the law of contracts.").
101. See MURRAY, supra note 24, § 42(E), at 124.
102. Corbin, supra note 81, at 198.
103. RESTATEMENT (SECOND) OF CONTRACTS § 48 cmt. a ("In the absence of legislation, the rule remains in effect.").
104. Id. ("Some inroads have been made on the rule by statutes and decisions with respect to bank deposits and collections, and by legislation with respect to powers of attorney given by servicemen." (citing U.C.C. § 4-405; RESTATEMENT (SECOND) OF AGENCY § 120 & cmt. a (1958))). The American Law Institute has recently published the Third Restatement on Agency Law. That Restatement contains a new provision, which is a change from prior law, and provides that death of a principal does not terminate the agent's authority until the agent has notice of the death. RESTATEMENT (THIRD) OF AGENCY § 3.07(2) (2006). This provision conforms the Restatement to an oft-cited federal decision, as well as the Uniform Durable Power of Attorney Act. Ricks, supra note 82, at 682 (citing Schock v. United States, 56 F. Supp. 2d 185 (D.R.I. 1999), aff'd on other grounds, 254 R3d 1 (1st Cir. 2001); UNIF. DURABLE POWER OF ATTORNEY ACT § 4, 8A U.L.A. 255 (1979)).
105. PERILLO, supra note 3, § 2.2, at 28.
106. RESTATEMENT (SECOND) OF CONTRACTS § 24 ("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.").
107. MURRAY, supra note 24, § 42(E), at 125.
108. See Oliphant, supra note 24, at 209 ("It seems clear that, where the offeree learns of the death of the offerer before he has acted in reliance upon the expectation aroused by the offer, he cannot bind the offerer's estate by a subsequent acceptance."); PERILLO, supra note 3, § 2.20(c), at 93 ("The rule is logical if the offeree is aware of the offerer's death because knowledge of death would be tantamount to a revocation ...."); MURRAY, supra note 24, § 42(E), at 125 ("If the offeree is aware of it [the offerer's death], clearly there should no longer be a power of acceptance.").
109. Professor Ricks found one such case, an admitted "rare scenario," which was In re Estate of Severtson, No. C7-97-1249, 1998 WL 88253 (Minn. Ct. App. Mar. 3, 1998), cited in Ricks, supra note 82, at 705-07. Severtson involved an elderly neighbor who offered to sell her real property to her younger next door neighbor. Id. at *1. The written offer signed by the elderly neighbor-intended to be an option contract with binding consideration but the "neighborly" seller refused payment-stated that the "[p]urchase price agreed upon is $100,000, to be paid to Helen Severtson if living or to the Estate of Helen Severtson is she is deceased or incapacitated." Id. Therefore, in this particular case, clearly the offerer "apparently intended her offer to survive her." Ricks, supra note 82, at 706.
110. The revocation, in this case, would most likely be considered indirect, since it was not effected by direct communication from the offerer to the offeree. Compare RESTATEMENT (SECOND) OF CONTRACTS § 43 ("An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect."), and Dickinson v. Dodds, 2 Ch. D. 463 (1876), with RESTATEMENT (SECOND) OF CONTRACTS § 42 ("An offeree's power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract.").
111. PERILLO, supra note 3, § 2.20(c), at 93 ("If [the offeree] accepts before [the offeror] dies, there is a contract and the only question presented would be whether [the offerer's] estate would have the defense of impossibility of performance.").
112. See RESTATEMENT (SECOND) OF CONTRACTS §§ 261-62.
113. See Ricks, supra note 82, at 700-05.
114. RESTATEMENT (SECOND) OF CONTRACTS § 90(1).
115. One concern of this changed rule may be the possible imposition on personal representatives of the offerer's estate. A fair criticism is that the personal representative may possibly be subject to the acceptance of offers made by the offerer while alive, of which the personal representative has no knowledge, and which therefore make it difficult to adequately plan and administer the assets of the offerer's estate. However, this is already true to some extent with existing contracts and assets of the decedent. There is every reason to believe that, in many if not most instances, the offeror will have kept some type of record of the offer he made in his personal effects and files, just as he does with existing asset and contract records. Perhaps, with any legislation implementing the elimination of the dying offer rule, a provision could be made whereby the offeree, upon discovering the death of the offeree, has an obligation to give prompt notification to the offerer's personal representative of both the existence of the offer, and the offeree's intention to consider the offer open.
116. RESTATEMENT (SECOND) OF CONTRACTS § 63 ("Unless the offer provides otherwise, ... an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offerer . . . .").
117. See, e.g., Dennis Patterson, Langdell's Legacy, 90 NW. U. L. REV. 196, 198 (1995).
118. RESTATEMENT (SECOND) OF CONTRACTS § 63(a); Beth A. Eisler, Default Rules for Contract Formation by Promise and the Need for Revision of the Mailbox Rule, 79 KY. L.J. 557, 563 (1990) (citing United Leasing, Inc. v. Commonwealth Land Title Agency of Tucson, Inc., 656 P.2d 1246, 1250 (Ariz. Ct. App. 1982); 1 E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS § 3.22 (199O)). The benefit of this rule depends, however, on the acceptance being dispatched properly, such as to the correct addressee and with the proper address. See PERILLO, supra note 3, § 2.23(a), at 110 ("The [mailbox rule] prevails generally throughout the U.S., with the qualification that the acceptance must be dispatched in a proper manner." (footnote omitted)).
119. See MURRAY, supra note 24, § 47(A).
120. 106 Eng. Rep. 250 (K.B. 1818). See also Valerie Watnick, The Electronic Formation of Contracts and the Common Law "Mailbox Rule," 56 BAYLOR L. REV. 175, 177-78 (2004) ("This rale of law, oft-called the 'mailbox rule,' originated in England at a time of widespread use of the post. Today, as more efficient methods of communication are routinely used, the rule's application has declined." (citing Adams, 106 Eng. Rep. 250; Paul Fasciano, Note, Internet Electronic Mail: A Last Bastion for the Mailbox Rule, 25 HOFSTRA L. REV. 971, 977 n.17 (1997))).
121. 106 Eng. Rep. at 250.
122. Id. at 250-51.
123. Id. at 251.
124. Id.
125. Id.
126. Id. Professor Williston made this same observation, noting that "[t]o modern thinking a requirement that the acceptance should be received would not involve the conclusion that the offeror must then accept the acceptance, and so go on ad infinitum." Williston, supra note 23, at 86 n.6.
127. Adams, 106 Eng. Rep. at 251.
128. Later, an offeree's discovery of information inconsistent with the offerer's desire to continue to enter into the contract with the offeree clearly could constitute an indirect revocation, even absent any direct communication of such lack of assent by the offerer. Dickinson v. Dodds, 2 Ch. D. 463 (1876). However, even in that event, information had to come to the attention of the offeree to effect a revocation. No such occurrence appears to have happened in Adams v. Lindsell, but rather the offeree in that case seems to have been completely unaware of the sale to the third party.
129. RESTATEMENT (SECOND) OF CONTRACTS § 63 cmt. a (1981).
130. See Watnick, supra note 120, at 179-80; MURRAY, supra note 24, § 47(A), at 162.
131. PERILLO, supra note 3, § 2.2, at 27 (citing Ricketts v. Pa. R.R., 153 F.2d 757, 760-61 (2d Cir. 1946) (Frank, J., concurring)).
132. Williston, supra note 23, at 87. Professor Williston further observed that "[i]t was rather on account of the necessity of the situation than because logical requirements were thought to be satisfied that it was held in Adams v. Lindsell, that mailing a letter of acceptance completed a contract proposed by a letter sent through the post." Id. at 86 (footnote omitted). Moreover, the rule has been thought to be the result of subjective thinking, probably because at the instant the offeree decided to accept and mailed the letter, both parties were now "of the same mind" as to the intent to contract. See KEVIN M. TEEVEN, A HISTORY OF THE ANGLO-AMERICAN COMMON LAW OF CONTRACT 182 (1990) ("[T]he subjective standard was reinforced" by Adams v. Lindsell.), quoted in Perillo, supra note 4, at 439 n.77. By contrast, Professor Perillo does not agree that there is anything inherently "subjectivist" in the Adams decision. Perillo, supra note 4, at 439 ("Curiously, some scholars . . . claim that Adams v. Lindsell. . . was ... based on a subjective theory. One cannot gather from the report of the case whether a subjective or objective theory nurtured the court's decision. The court seems to have had the pragmatic goal of finding a rationale to uphold the formation of contracts by correspondence." (footnote omitted)).
133. See Eisler, supra note 118, at 558 ("The dispatch or mailbox rule departs from the parties' expectations and from a more logical rule which would be in keeping with modem communications technology. The mailbox rule also fails to parallel existing formation default rules." (footnote omitted)).
134. See RESTATEMENT (SECOND) OF CONTRACTS §24 ("An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it."); see also LANGDELL, supra note 30, at 15 ("[C]ommunication to the offeree is of the essence of every offer.").
135. See RESTATEMENT (SECOND) OF CONTRACTS § 42.
136. See id. § 63.
137. See id. §38.
138. See id. §39.
139. Compare id. § 42 ("An offeree's power of acceptance is terminated when the offeree receives from the offerer a manifestation of an intention not to enter into the proposed contract."), and id. § 40 ("Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offeror ...."), with id. § 63(a) ("Unless the offer provides otherwise, ... an acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree's possession, without regard to whether it ever reaches the offeror .. . .").
140. Id. §63(b).
141. See Corneill A. Stephens, Escape from the Battle of the Forms: Keep it Simple, Stupid, 11 LEWIS & CLARK L. REV. 233, 237 (2007) ("At common law, the offeror was deemed to be the master of his offer. That is, the offeror was master of the terms of the contract created by acceptance of the offer. As such, the offeree could accept the offer only by exactly complying with the terms of the offer." (footnote omitted) (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 29, 58)); PERILLO, supra note 3, §2.23(a), at 112 ("The offeror, it must be remembered, is master of the offer and has power to negate the mailbox rule. This can be done by framing the offer so as to require actual receipt of an acceptance as a precondition to the formation of the contract. However, such a requirement must be clearly expressed." (footnote omitted) (citing Union Interchange, Inc. v. Sierota, 355 P.2d 1089 (Colo. 1960); Holland v. Riverside Park Estates, Inc., 104 S.E.2d 83 (Ga. 1958); Lewis v. Browning, 130 Mass. 173 (1880); W. Union Tel. Co. v. Gardner, 278 S.W. 278 (Tex. Civ. App. 1925); 1 WILLISTON ON CONTRACTS § 6:40; RESTATEMENT (SECOND) OF CONTRACTS § 63 cmt. b)).
142. Eisler, supra note 118, at 569.
143. RESTATEMENT (SECOND) OF CONTRACTS §40 ("Rejection or counter-offer by mail or telegram does not terminate the power of acceptance until received by the offerer, but limits the power so that a letter or telegram of acceptance started after the sending of an otherwise effective rejection or counter-offer is only a counter-offer unless the acceptance is received by the offerer before he receives the rejection or counter-offer.").
144. E. Frederics, Inc. v. Felton Beauty Supply Co., 198 S.E. 324 (Ga. Ct. App. 1938), overruled on other grounds by Willis v. Hill, 159 S.E.2d 145 (Ga. Ct. App. 1967), rev'd, 161 S.E.2d 281 (Ga. 1968); RESTATEMENT (SECOND) OF CONTRACTS § 63 cmt. c, cited in PERILLO, supra note 3, § 2.23(a), at 113.
145. See supra notes 71-80 and accompanying text.
146. Williston, supra note 23, at 87.
147. See Adams v. Lindseil, 106 Eng. Rep. 250 (K.B. 1818) (decision assumed: (1) no contract could ever be completed by mail without mailbox rule, and (2) under the facts of the case the sale of the wool to a third party would have been sufficient to constitute a revocation absent formation of the contract via the mailbox rule); see also supra notes 126-128 and accompanying text.
148. See supra notes 134-144 and accompanying text.
149. RESTATEMENT (SECOND) OF CONTRACTS § 63(a); Eisler, supra note 118, at 563 (citing United Leasing, Inc. v. Commonwealth Land Title Agency of Tucson, Inc., 656 P.2d 1246, 1250 (Ariz. Ct. App. 1982); 1 FARNSWORTH, supra note 118, § 3.22). The benefit of this rule depends, however, on the acceptance being dispatched properly, such as to the correct addressee and with the proper address. See PERILLO, supra note 3, § 2.23(a), at 110 ("The [mailbox rule] prevails generally throughout the U.S., with the qualification that the acceptance must be dispatched in a proper manner." (footnote omitted)).
150. LANGDELL, supra note 30, at 20-21 (footnotes omitted).
151. See Stephens, supra note 141, at 327 (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 29, 58); PERILLO, supra note 3, §2.23(a), at 112 (citing Union Interchange, Inc. v. Sierota, 355 P.2d 1089 (Colo. 1960); Holland v. Riverside Park Estates, Inc., 104 S.E.2d 83 (Ga. 1958); Lewis v. Browning, 130 Mass. 173 (1880); W. Union Tel. Co. v. Gardner, 278 S.W. 278 (Tex. Civ. App. 1925); 1 WILLISTON ON CONTRACTS § 6:40; RESTATEMENT (SECOND) OF CONTRACTS § 63 cmt. b)).
152. LANGDELL, supra note 30, at 21.
153. Id.
154. The offeree can still communicate an acceptance to the offeror face-to-face! Though, this is admittedly becoming less common in our society. See JOHN L. LOCKE, WHY WE DON'T TALK TO EACH OTHER ANYMORE: THE DE-VOICING OF SOCIETY (1999).
155. Eisler, supra note 118, at 568.
156. Id. at 568-69 (footnote omitted).
157. Id. at 571 (citing R.H. COASE, THE FIRM, THE MARKET, AND THE LAW (1988)).
158. RESTATEMENT (SECOND) OF CONTRACTS § 42 (1981) ("An offeree's power of acceptance is terminated when the offeree receives from the offerer a manifestation of an intention not to enter into the proposed contract.").
159. Eisler, supra note 118, at 566-67. As Professor Eisler points out, actually the offeree may seek or obtain the protection of irrevocability in ways other than simply obtaining an expressly bargained-for option, such as a signed writing, a "firm offer" under the UCC, or reliance on an offer. See id. (citing N.Y. GEN. OBLIO. LAW §5-1109 (McKinney 1989); U.C.C. §2-205 (1990); RESTATEMENT (SECOND) OF CONTRACTS §§ 87(2), 90; Drennan v. Star Paving Co., 333 P.2d 757 (Cal. 1958)).
160. W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 HARV. L. REV. 529, 529 (1971). One of the earliest academic descriptions of the rising phenomenon of standard form contracts observed: No longer do individuals bargain for this or that provision in the contract .... The control of the wording of those contracts has passed into the hands of the concern, and the drafting into the hands of its legal advisor .... In the trades affected it is henceforth futile for an individual to attempt any modification, and incorrect for the economist and lawyer to classify or judge such arrangements as standing on an equal footing with individual agreements. Meyerson, supra note 37, at 1264 (alterations in original) (quoting OTTO PRAUSNITZ, THE STANDARDIZATION OF COMMERCIAL CONTRACTS IN ENGLISH AND CONTINENTAL LAW 18 (1937), reviewed by Karl Llewellyn, Book Review, 52 HARV. L. REV. 700 (1939)).
161. Russell Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U. CHI. L. REV. 1203, 1203 (2003).
162. HENRY SUMNER MAINE, ANCIENT LAW 170 (Thoemmes Press 1996) (1861) (emphasis omitted).
163. See generally Nathan Isaacs, The Standardizing of Contracts, 27 YALE L.J. 34 (1917); Friedrich Kessler, Contracts of Adhesion-Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 629, 640-41 (1943) ("Standard contracts in particular could thus become effective instruments in the hands of powerful industrial and commercial overlords enabling them to impose a new feudal order of their own making upon a vast host of vassals. This spectacle is all the more fascinating since not more than a hundred years ago contract ideology had been successfully used to break down the last vestiges of a patriarchal and benevolent feudal order in the field of master and servant .... Thus the return back from contract to status which we experience today was greatly facilitated by the fact that the belief in freedom of contract has remained one of the firmest axioms in the whole fabric of the social philosophy of our culture." (footnote omitted) (citing Note, "Mutuality" in Exclusive Sales Agency Agreements, 31 COLUM. L. REV. 830 (1931))).
164. Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1177(1983).
165. Kessler, supra note 163, at 631.
166. Id.
167. Id. at 632.
168. Slawson, supra note 160, at 530.
169. Rakoff, supra note 164, at 1225-28. As Hillman and Rachlinski point out: Consumers also have good reason to believe that the standard terms are not something to worry about. Consumers recognize that boilerplate language is usually a matter of customary practice within an industry, rather than an attempt by a single business to exploit them. . . . Consumers may sign standard-form contracts without reading them carefully because they believe that most businesses are not willing to risk the cost to their reputation of using terms to exploit consumers. Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U. L. REV. 429, 446-47 (2002) (footnotes omitted) (citing John J.A. Burke, Contracts as a Commodity: A Nonfiction Approach, 24 SETON HALL LEGIS. J. 285, 286-90 (2000); Daniel T. Ostas, Postmodern Economic Analysis of Law: Extending the Pragmatic Visions of Richard A. Posner, 36 AM. BUS. L.J. 193, 229 (1998); Stephen J. Ware, Comment, A Critique of the Reasonable Expectations Doctrine, 56 U. CHI. L. REV. 1461, 1482 (1989)).
170. Rakoff, supra note 164, at 1229.
171. See id. at 1179 (citing P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 731 (1979); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 370-71 & n.338 (1960); IAN R. MACNEIL, CONTRACTS 445 (2d ed. 1978); Robert A. Hillman, Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302, 67 CORNELL L. REV. 1, 13 (1981); Arthur Allen Leff, Unconscionability and the Crowd-Consumers and the Common Law Tradition, 31 U. PITT. L. REV. 349, 349 ( 1970); Karl N. Llewellyn, The Effect of Legal Institutions Upon Economics, 15 AM. ECON. REV. 665, 673 (1925); Arnold Louis Rotkin, Standard Forms: Legal Documents in Search of an Appropriate Body of Law, 1977 ARIZ. ST. L.J. 599, 603; Slawson, supra note 160, at 531; William C. Whitford, The Functions of Disclosure Regulation in Consumer Transactions, 1973 WIS. L. REV. 400, 425-26).
172. Rakoff, supra note 164, at 1180.
173. Meyerson, supra note 37, at 1263. Meyerson observes that the first use of standard form contracts was in the marine insurance industry. Id. at 1263-64 (citing PRAUSNITZ, supra note 160, at 11, reviewed by Llewellyn, supra note 160).
174. Rakoff, supra note 164, at 1174. Rakoff illustrated this by point by alluding to the then newly-drafted section 211 of the Restatement, as well as new sections in Corbin's treatise. Id. (citing RESTATEMENT (SECOND) OF CONTRACTS § 211 (1981); 3 ARTHUR L. CORBIN, CORBIN ON CONTRACTS §§ 559A-559I (C. Kaufman Supp. 1982)).
175. LLEWELLYN, supra note 171, at 370.
176. Id.; see also Rakoff, supra note 164, at 1200 & n.98 (observing that comment b states that the consumer "trustfs] to the good faith of the party using the form" (alteration in original) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 211 cmt. b)).
177. LLEWELLYN, supra note 171, at 366 ("[A]mong those terms which plainly are in fact assented to only one time in a thousand[,] there are still many which are sound particularizations of the deal to the business, very useful and wholly within reason; and those ought to be sustained and applied. A workable guide for courts must offer some wherewithal to sort such out from the clauses of oppression or outrage ...."), cited in Rakoff, supra note 164, at 1202.
178. See U.C.C. § 2-302 (2003); RESTATEMENT (SECOND) OF CONTRACTS § 208.
179. Rakoff, supra note 164, at 1185.
180. Id. at 1185-86.
181. Id. at 1186.
182. 7 PERILLO, supra note 10, § 29.8, at 402-03 ("[O]ne having the capacity to understand a written document who reads it, or, without reading it or having it read to him, signs it, is bound by his signature." (quoting Rossi v. Douglas, 100 A.2d 3, 7 (Md. 1953))); see also Rakoff, supra note 164, at 1185-86.
183. 47 A.L.I. PROC. 525 (1970).
184. Rakoff, supra note 164, at 1187.
185. PERILLO, supra note 3, § 2.2, at 27 (citing Ricketts v. Pa. R.R., 153 F.2d 757, 760-61 (2d Cir. 1946) (Frank, J., concurring)).
186. Meyerson, supra note 37, at 1277 (quoting Llewellyn, supra note 160, at 704). Meyerson observed that Llewellyn's position bore a great deal of similarity to the doctrine of reasonable expectations in insurance law. Id. See generally Robert E. Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 HARV. L. REV. 961 (1970) (describing the doctrine of reasonable expectations); Kessler, supra note 163, at 637 (arguing that courts should ascertain the consumer's reasonable expectations in assenting to the form contract, and whether the business entity "disappointed reasonable expectations based on the typical life situation").
187. Meyerson, supra note 37, at 1265 (emphasis added).
188. LLEWELLYN, supra note 171, at 370.
189. U.C.C. § 2-302 (2003); RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981).
190. I have previously argued that subsection 211(3) should be adopted, in a wider analysis of all the problems inherent with standard form contracts. Wayne R. Barnes, Toward a Fairer Model of Consumer Assent to Standard Form Contracts: In Defense of Restatement Subsection 211(3), 82 WASH. L. REV. 227 (2007). Here, I am simply focusing on the objective theory concerns addressed by subsection 211(3).
191. RESTATEMENT (SECOND) OF CONTRACTS §211 (emphasis added).
192. See Hillman & Rachlinski, supra note 169, at 458.
193. RESTATEMENT (SECOND) OF CONTRACTS § 211 (3).
194. Barnes, supra note 190, at 249 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 211 cmt. f).
195. See id. at 249-51 (citing James J. White, Form Contracts Under Revised Article 2, 75 WASH. U. L.Q. 315 (1997); Jean Braucher, Delayed Disclosure in Consumer E-Commerce as an Unfair and Deceptive Practice, 46 WAYNE L. REV. 1805 (2000)).
196. See White, supra note 195, at 346-47.
197. David McGowan, Legal Implications of Open-Source Software, 2001 U. ILL. L. REV. 241, 291 n.223.
198. There is one thing I wish to mention here, and that is how the adoption of this approach might affect the doctrine of unconscionability. A fair objection to my proposal might well be that the unconscionability doctrine could already "save" consumers from the types of terms which might otherwise fail objective theory. Though this is beyond the scope of the point at hand-Restatement section 211(3) sounds in objective theory and should therefore be utilized-I should mention that, in the first place, unconscionability has not been the most reliable protection for consumers in the actual adjudication of contract disputes. See DiMatteo & Rich, supra note 74, at 1096-97. Nevertheless, in any event, I am proposing a reformulation of the paradigm of consumer assent to standard form contracts, and the fact that existing unconscionability doctrine may be able to reach some of these cases is not, to my mind, a compelling reason not to implement objective theory in form contract disputes. However, it may be that unconscionability still has a role to play, especially in those instances where a consumer knowingly agreed to some egregious term. Objective theory would not help such a consumer, but unconscionability would still be a perfect vehicle to protect the consumer if a court so warranted.
199. PERILLO, supra note 3, §2.2, at 27 (citing Ricketts v. Pa. R.R., 153 F.2d 757, 760-61 (2dCir. 1946) (Frank, J., concurring)).
200. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
201. Oliphant, supra note 24, at 201.