ABSTRACT
We have long been aware that the paradigm of assent in classical contract law plays a minimal role in contemporary transactions. Standard forms dominate both the consumer and the business environment so that only contracts that are sufficiently large, complicated, or idiosyncratic enough to justify negotiation over more than the basic terms of quantity, price, and delivery satisfy the meeting of the minds standard that underlies traditional notions of consent. In place of rigid rules of formation based on offer and acceptance, we have, in sales law at least, a broad admonition that if people act as if they have a contract, then a contract exists.1 The hard part comes not in deciding whether there exists some obligation worthy of being denominated a contract, but in deciding whether to enforce terms embedded within a contract that the parties have failed to negotiate. Much of the contracts literature from the past three decades has been devoted to the identification of default rules that apply in the face of contractual silence and of decision rules that resolve conflict when one party attempts to bind the other party to terms on which no negotiation occurred.
