Maryland Law Review 

About: Maryland Law Review is an academic journal. The journal publishes majorly in the area(s): Constitutional law & Constitution. It has an ISSN identifier of 0025-4282. Over the lifetime, 639 publications have been published receiving 3543 citations.

Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power

Abstract: rather than at gunpoint, might agree that over the long run a contract defense of duress would be a good thing for them. So long as there is no disagreement as to the values or moral vision on which to act, the decision maker is not acting paternalistically. Some issues that have often been addressed with paternalist motives are the legality of the possession of prohibited substances; whether there should be required terms in various types of contracts, such as marriage or consumer sales contracts; and the extent to which infants, idiots and seamen are subject to the same contract regime as \"normal\" people. As in the case of distributive motives, each of these issues can be resolved through the application of tests that do not involve paternalism. One might try to settle each by appeal to distributive considerations, as well as by appeal to fairness, morality, or rights. 3. Efficiency Motives A decision maker acting from efficiency motives accepts the rules of the previous regime as legitimate from the [VOL. 41 MOTIVES IN CONTRACT AND TORT LAW point of view of fairness, morality, rights, distribution or whatever. His goal is to modify one of these rules so as to make everyone affected better off, by their own criteria of better-offness, than they would have been under the old dispensation. This will be possible where transaction costs of one kind or another have prevented parties under the previous regime from making an exchange. If the decision maker knows that this exchange would have occurred, he may be able to induce the parties to perform it by the right modification of the background rules. Some examples of issues that decision makers often approach with efficiency motives are: whether there should be nondisclaimable warranties attached to consumer goods in circumstances where consumers can't cheaply acquire information that would allow them to assess product safety, and sellers have incentives not to provide this information; what should be the rules of damages for breach of contract; whether sports arenas should be liable for damage inflicted by one fan on another. Of course, each of these issues can be approached with quite different motives, or with a set of motives that lead to conflicting