Pernicious Markets and the Limits of Contract Law
Pernicious Markets and the Limits of Contract Law
This book takes a largely celebratory stance towards commerce and markets. However, markets can also be pernicious. The greatest historical example of a commercial evil is the Atlantic slave trade, which was organized as a market enterprise dedicated the mass immiseration of millions of people. When markets are pernicious, the justification for contract law runs out. Refusing to enforce such contracts is not a matter of paternalism, but rather of recognizing that contract law is justified by well-functioning markets. When contracts do not support such markets, the justification for their enforcement fails. Markets can be pernicious by having harmful consequences, injecting commercial values into non-commercial settings, or by distributing goods whose value is tied up in the very fact that they are not distributed in the market. Such situations provide a justification for rules limiting the enforcement of otherwise valid contracts.
Keywords: pernicious markets, public policy exceptions, unconscionability
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