Remedies When Contracts Lack Consent: Autonomy and Institutional Competence

Autonomy-based theories hold that enforceable contracts require the knowing and voluntary consent of the parties. In defining knowing and voluntary, however, autonomy theorists have paid little attention to the remedy that will be granted if consent is round to be lacking, or to the question of what obligations (if any) will be enforced in place of the unconsented-to contract. In this paper, I expand on Michael Trebilcock\u27s argument that considerations of institutional competence-specifically, the relative ability of courts and private actors to craft acceptable substitute obligations-should sometimes play a key role in defining what counts as knowing and voluntary consent