#MeToo, Consent and Contract Law

Sally Wheeler  has described contracts as the ‘lingua franca’ for defining relationships between individuals and society’s organisations. I think it goes even further. We find the language of contract in relationships between individuals in most contexts. For example at the height of the #MeToo movement a Dutch legal start-up company produced LegalFling, an app which enabled prospective sexual partners to ‘create a legally binding consent contract before sex.’ The app claimed that a departure from it would constitute ‘a breach of contract’ upon which ‘cease and desist letters’ enforcing ‘penalty payments’ would be generated. This example raises a multitude of issues about sexual consent, but it also leads us to ask whether contract law can learn anything from the #MeToo conversation of consent?

Randy E. Barnett claims that consent is the ‘heart’ of how we theorise contract law’ as well as how we understand its practice.  He says that in contract law, legal enforcement is justified because ‘the promisor has voluntarily performed acts that conveyed her intention to create a legally enforceable obligation by transferring alienable rights’ (p.300). He distinguishes consent from promise. He claims that while a promise may be morally enforceable, it is not legally enforceable. Legal enforceability comes from a party consenting and therefore evidencing an intention to be legally bound.

However, #MeToo, as it unfolded in the American, British and Australian contexts, showed us that consent, despite being ‘the lynchpin of liberal democracy’ sets a pretty low bar to enable us to determine whether our actions are ‘good’. During #MeToo we heard stories of outright assault, but we also heard stories of consensual acts which were nonetheless unethical, harmful or both. We heard stories where women did not feel they had the agency and autonomy to not consent. What #MeToo amplified, again, is that freedom and choice (the essence of consent) are not distinct from our positions and identities. Consent does not require us to commit to a no harm policy or require us to check our power over others . In short, consent does not tell us whether an act is wanted or whether it is good or bad, either for the individual or for society. 

So what are the implications of these insights for the commercial world and for contract law? The common law principles of contract law, when understood within classical theory which centralises the freedom to contract, does not consider questions of choice that are based on ‘prior assignment of entitlements’ but rather assumes everyone has something to exchange. It does not ask who has freedom and choice and why? Contract law, as Gillian Hadfield tells us is not concerned with doing any of the normative work which might help us to understand the complexity of choice and freedom. Once it is satisfied that the parties entered freely into an agreement its work is done. This might be a little harsh when we consider the practical operation of doctrine via equity,(duress, undue influence and unconscionability) and the many legislative limits that are placed upon freedom to contract in both common law and civil law countries (consumer, fair trading, employment, tenancy, and many more) but even so it remains true that contract law consent shares some of the same limitations as sexual consent highlighted by #MeToo. Consenting to a contract is not the same as wanting that contract. Consenting to a contract does not make the contract right or just. Consent to a contract needs to be judged according to structural inequalities that exist in society and the injustices of a predatory capitalist market that replicates them.

Barnett’s consent theory of contract is to be read as part of the freedom to contract theory. Its limitations have been discussed in the literature for some time, but it persists in both the theoretical imaginations of contract and the practical application of its doctrines. Contract law it seems cannot be seen as anything other than voluntary. While on the face of it the #MeToo critique of consent seems divorced from the critique of consent in contract law, in fact by connecting law to this important social discourse can be insightful and productive. If the enquiry leads to the conclusion that consent is too flaky a concept for valuing our contracts then we need to push the boundaries of contract theory further away from consent. 

A detailed discussion of consent in contract law theory (how it is understood and its limitations) can be found in my article ‘What can Contract law learn from #MeToo’, Journal of Law and Society.