Autonomy, reason and bias in contract law

Research output: Chapter in Book/Report/Conference proceedingChapterAcademic

Abstract

The cognitive sciences provide us in high frequency with insights in the functioning of the human mind. One of these insights is that human decision making is often not rational. The law has tools to deal with lapses of rationality, but it works on the basis of an image of mankind according to which humans are, and typically act, rationally. This raises the question whether law should be more adaptive to the stream of new insights produced by the cognitive sciences. The present article aims to answer this general question for an important field of law: the law of contract. It shows that there are good reasons to assume that the conclusion of a contract is often not a rational event.
The law can follow two strategies in dealing with the insight that contracts, and – extrapolating a bit – juridical acts in general – are often not created rationally. One strategy is to use the tools which law already has, for dealing with irrationality for newly discovered kinds of cases such as the anchoring bias. Another strategy is to redesign substantial parts of the law to take into consideration that subjective preferences often do not reflect objective interests. Which strategy is the best depends on the frequency of situations in which subjective preferences do not reflect objective interests.
Original languageEnglish
Title of host publicationLaw, science, rationality
EditorsA. Waltermann, D. Roef, J. Hage, M. Jelicic
Place of PublicationDen Haag
PublisherEleven International publishing
Pages31-49
Number of pages19
ISBN (Electronic)978-94-6094-448-2
ISBN (Print)978-94-6236-989-4
Publication statusPublished - Dec 2019

Publication series

SeriesMaastricht Law Series
Volume14

Keywords

  • anchoring bias, autonomy, contract, interest, preference, rationality, reliance

Cite this

Hage, J. (2019). Autonomy, reason and bias in contract law. In A. Waltermann, D. Roef, J. Hage, & M. Jelicic (Eds.), Law, science, rationality (pp. 31-49). [2] Eleven International publishing. Maastricht Law Series, Vol.. 14