INTRODUCTION

The idea of contract is based on consent: a party voluntarily enters into an agreement by which he imposes obligations on himself in (most of the time) exchange for something. Therefore, traditionally, a contract is defined as an agreement. Thus, the DCFR states that ‘[a] contract is an agreement which is intended to give rise to a binding legal relationship or to have some other legal effect’. The proposals for a Directive on contracts for the supply of digital content and for online and other distance sales of goods also define a contract as ‘an agreement intended to give rise to obligations or other legal effects’. Then, in this view of contract, by the interplay of offer and acceptance, the parties bind themselves intentionally, creating a mutual relationship.

But even in a negotiated contract, which contract law doctrine usually presumes to be balanced, the agreement, or more precisely the consent of the parties to the agreement, is far from perfect. Most of the time, the parties are not aware of or do not understand the terms of the contract beyond the core of the bargain, usually the price and the goods or services provided. Consent (or non-consent) has different levels. Thus, the ignorance of a party may refer to the existence of a contractual relationship, or the existence, content or meaning of some of the terms of the contract.

Contract law recognises that a person can legally bind himself without knowing that he has done so, through his purported or hypothetical intention. Then, via a legal fiction, the law creates or supplements a contractual relationship. Today, the prevailing view on contract formation is the objective principle, which implies that the agreement must be understood from the external perspective of a reasonable observer, and not necessarily from the actual perception or understanding of the parties. The reasons for this construction may be varied, but the main rationales seem to be the protection of the expectations of the other party, efficiency and legal certainty.

The role (and existence) of consent has been particularly discussed with regard to standard form contracts. Thus, adhesion contracts have been critiqued on the basis that they lack real assent by the non-drafting party.