Hanoch Dagan & Michael Heller
Volume 77, Issue 1, 1-37
You can scribble an agreement on a napkin or hire lawyers to negotiate a hundred-page contract. Either way, most of your contractual obligations will not be in your document. They will be in the background rules contract law applies absent your express agreement. Justifying these defaults is a core task of contract theory; getting them right is a core task of contract law.
This Article introduces the autonomy default paradigm, a conceptually coherent and normatively attractive account of contract law defaults. We show that defaults are justified to the extent they enhance our autonomy, understood as self-determination. They vindicate our autonomy through two pathways: (a) empowering defaults that proactively facilitate people’s autonomy and (b) safeguarding defaults that protect our future selves and ensure relational justice.
Often, the parties to commercial contracts are legally sophisticated players who just want to get wealthier. There, the welfare-maximizing default is often the autonomy-enhancing one. But for the vast run of contracts—getting jobs, getting married, buying homes, buying stuff—autonomy defaults may diverge from their efficiency-based counterparts. In these cases, the law often does and always should opt for autonomy defaults, even at the price of some efficiency.