oa Comparative and International Law Journal of Southern Africa - The basis of contractual liability in American law

Volume 37, Issue 2
  • ISSN : 0010-4051



In American law the rejection of the will theory and adoption of an objective theory of assent, coupled with the acceptance of the bargain theory of consideration, saw a shift in emphasis from agreement to bargain, and substance to form. However, substantive issues have remained a concern of the courts and are principally implemented under the reliance principle and even under the guise of the doctrine of consideration itself. Although most enforceable contracts are the result of subjective agreement between the parties and subjective intention, at least by implication, is thus not completely irrelevant within the context of contractual responsibility, American law clearly emphasises the manifestations of assent rather than actual assent itself. It also recognises the ascription of contractual liability on the basis of reliance in the absence of consideration. This article examines the principles of contractual liability in American law and the ways in which they are applied in contract law adjudication.

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