1. Act V, scene 1.

2. See Roberto Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), 58-90. Duncan Kennedy, "Form and Substance in Private Law Adjudication," 89 Harv. L. Rev. 1685 (1976); Clare Dalton, "An Essay in the Deconstruction of Contract Doctrine," 94 Yale L. J. 997 (1985); Jay Fein-man, "Promissory Estoppel and Judicial Method," 97 Harv. L. Rev. 678, 708-712 (1984).

3. See Patrick Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), esp. Pt. II.

4. de Koning v. Boychuk, [1951] 3 D.L.R. 624 (Alta. S.C.).

5. Thornton v. Shoe Lane Parking Ltd., [1971] 2 Q.B. 163 (C.A.).

6. Suisse Atlantique Société D'Armement Maritime S.A. v. N.V. Rotterdamsche Kolen Ccntrale, [1966] 2 All E.R. 69 (H.L.).

7. See Henningsen v. Bloomfield Motors, 161 A. 2d 69 (N.J.S.C. 1960).

8. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974); Patrick Atiyah, Consideration in Contracts: A Fundamental Restatement (Canberra: Australian National University Press, 1971); see also H. Collins, The Law of Contract (London: Weidenfeld, 1986), 8-21.

9. S. M. Waddams, The Law of Contracts, 2d ed. (Toronto: Canada Law Book, 1984), 326.

10. Duncan Kennedy, "Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference w Compulsory Terms and Unequal Bargaining Power," 41 Maryland L. Rev. 563, 580-584, (1982); see also Kennedy, "Form and Substance," 1717-1722, 1731-1737.

11. See E. J. Weinrib, "Legal Formalism: On the Immanent Rationality of Law," 97 Yale L. J. 949 (1988)·

12. Kennedy, "Form and Substance," 1774-1776.

13. This idea is developed more fully below (see under sec. 8).

14. Numbers in the text refer to paragraphs in Hegel's Philosophy of Right, trans. T. M. Knox (Oxford: Oxford University Press, 1967).

15. See E.J. Weinrib, "Right and Advantage in Private Law," 10 Cardozo L. Rev. 1283, 1291-1293 (1989).

16. Hegel's Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1967), 109-119 (henceforward referred to in the text as PhS ). Michel Rosenfeld has also sought to explain contract by tracing its genesis from the relation of master and slave; see "Hegel and the Dialectics of Contract," in D. Cornell, M. Rosenfeld, and D. Carlson, ers., Hegel and Legal Theory (New York: Routledge, 1991), 236-250.

17. See J. M. Bernstein, "From Self-consciousness to Community: Act and Recognition in the Master-Slave Relationship," in Z. A. Pelczynski, ed., The State and Civil Society: Studies in Hegel's Political Philosophy (Cambridge: Cambridge University Press, 1984), 15.

18. See The Logic of Hegel, trans. W. Wallace (Oxford: Oxford University Press, 1892), par. 187.

19. The relevant tradition is not coextensive with contract theory in general. Contract can be illuminated in different ways by relating it to different contexts. Economics sees contract as a vehicle for allocating scarce resources among competing wants and may prescribe regulatory measures to ensure that this mechanism produces optimal outcomes; see A. Kronman and R. Posner, eds., The Economics of Contract Law (Boston: Little, Brown, 1979). Sociology views contract as a form of social cohesion distinguished from forms based on status and hierarchy and may identify evolving forms of contractual relations that legislation should facilitate; see Ian MacNeil, The New Social Contract: An Inquiry into Modern Contractual Relations (New Haven: Yale University Press, 1980). A jurisprudence of contract (such as ours) sees contract as a type of obligation, seeks to explain the specific difference of contractual obligation, and elaborates the criteria of enforceability and excuse implicit in its theory. Because our theory of contract is a theory of contractual obligation, it views contract in abstraction from its undoubted connection to the market and to civil society; for the basic elements of these institutions—empirical wants, needs, group interests, etc.—are irrelevant from the standpoint of a moral theory of obligation. A comprehensive theory of contract would integrate all these contexts into an all-embracing one giving each special context its due; see Michael Oakeshott, "The Concept of a Philosophical Jurisprudence," Politica, December 1938, p. 352. In this chapter, however, I offer only a jurisprudence of contract, and the relevant field consists of theories of contractual obligation.

20. See Charles Fried, Contract as Promise (Cambridge: Harvard University Press, 1981), 9: "What is a promise, that by my words I should make wrong what before was morally indifferent?"

21. Hume, for example, discusses contractual obligation under the heading "Of the Obligation of Promises"; see David Hume, A Treatise of Human Nature (Oxford: Clarendon Press, 1888), 516-525; see also John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 298-308; Fried, Contract as Promise.

22. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. L. W. Beck (Indianapolis: Bobbs-Merrill, 1959), 40.

23. In Lon Fuller's terms, promissory obligation belongs to the morality of aspiration rather than to the morality of duty; see The Morality of Law (New Haven: Yale University Press, 1969), 5-9.

24. See L. Fuller and W. Perdue, Jr., "The Reliance Interest in Contract Damages," 46 Yale L. J. 52 (1936); Atiyah, Consideration in Contracts, 45-61. For an early critique of the reliance theory, see M. Cohen, "The Basis of Contract," 46 Harv. L. Rev. 553, 578-580 (1933).

25. See, e.g., Patrick Atiyah, Essays on Contract (Oxford: Clarendon Press, 1986), 19-21.

26. Fried, Contract as Promise.

27. Id., 16-17.

28. Id., 20-21.

29. This criticism of Fried is also made by Peter Benson, "Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory," 10 Cardozo L. Rev. 1077, 1116 (1989).

30. G.W.F. Hegel, Vorlesungen üuber Rechtsphilosophie 1818-1831, ed. K.-H. Ilting (Stuttgart-Bad Cannstatt: Frommann-Holzboog, 1974), IV, 249-250.

31. Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd., [1943] A.C. 32 (H.L.).

32. Norwich Union Fire Insurance Society v. Price, [1934] A.C. 455, 461-462 (P.C.).

33. Craven-Ellis v. Canons, Ltd., [1936] 2 K.B. 403, 412 (C.A.).

34. By the same principle, if A confers a benefit on B in circumstances where forcing B to reciprocate would unilaterally subordinate him to the will of A, then A has no right to recover; he is a mere volunteer. See In re Rhodes, Rhodes v. Rhodes, L.R. 44 Gh.D. 94 (1890).

35. See Vorlesungen, IV, 257-258. Since we have understood the wholly executory exchange as the best embodiment of personality, we have also understood the judicial treatment of this form as the paradigm case of contract—as the standard for determining the remedy in the partly executed contract. However, since we have also understood the concrete exchange of benefits as a determinate instance of dialogic community, our theory leaves room for a distinctive law of quasi-contract to deal with transfers of benefits involving no promises. There is thus no need to assimilate the exchange of benefits to the executory model by imputing fictitious promises.

36. Fuller and Perdue, "The Reliance Interest in Contract Damages," 57-66.

37. Richard Posner, The Economic Analysis of Law, 4th ed. (Boston: Little, Brown, 1992), 119.

38. A powerful objection to the efficiency account of the expectation measure is raised by Ian MacNeil. MacNeil argues that, assuming zero transaction costs, efficiency would be served as well by a remedy of specific performance requiring the party wishing to breach to buy out the other party. The superior efficiency of the expectation measure would then depend on whether the costs involved in such transactions would exceed those involved in litigating or settling damage claims—a question that can be answered only by empirical inquiry. See "Efficient Breach of Contract: Circles in the Sky," 68 Virginia L. Rev. 947 (1982).

39. O. W. Holmes, The Common Law, ed. M. Howe (Cambridge: Belknap Press, 1963), 235-236.

40. Payzu Ltd. v. Saunders, [1919] 2 K.B. 581 (C.A.). Normally, the date at which the promisee is required to mitigate is the date of breach, but the breach date rule is modified where the property is subject to wide fluctuations in value; see Asamera Oil Corp. Ltd. v. Sea Oil & General Corp., [1979] 1 S.C.R. 633; Miliangos v. Geo. Frank (Textiles) Ltd., [1976] A.C. 443 (H.L.).

41. The expectation measure of damages is also limited by the rule in Hadley v. Baxendale, 156 E.R. 245 (1854), regarding consequential losses too remote for recovery. Although the promisee's right is to be put in the position he would have been in had the promise been performed, this right extends only to compensation for losses that were reasonably in the contemplation of both parties at the time of the agreement. The test of reasonable foreseeability appears to some as empty and manipulable, since the court will (it is said) regard as reasonably foreseeable those consequences that it thinks the defaulting promisor should pay for. The test is thus thought to conceal other grounds of decision such as the relative cheapness with which the parties can insure against the risk of loss; see Waddams, Law of Contracts, 557-563. Such skepticism about the rule in Hadley v. Baxendale ignores the latent rationality it embodies. A closer examination reveals the rule as an imprint of dialogic community.

The point of the rule is to limit the promisee's right to the value of his expectancy in accordance with the intersubjective relation within which the right is first established. The promisee's right to the value of his expectancy is the objective confirmation of his status as an end. Because this right depends on the parties' mutual deference, it cannot be determined independently of the mind of the promisor. To make the promisee's expectations alone determinative would require the promisor to insure the promisee against risks without an opportunity to extract compensation, and so would imply a one-sided subordination of the promisor to the promisee's interests. But neither can the promisee's damages be determined by the subjective foresight of the promisor, for this would place the promisee at the mercy of the promisor's idiosyncratic capabilities. The expectation to which the promisee has an objective right is one that is codetermined in accordance with a common will that mediates between the isolated subjectivities of the parties, and to which each can thus defer without self-loss. Translated into the language of Hadley v. Baxendale, this means that the defaulting party is liable only for those consequential losses that were reasonably in the contemplation of both parties. However, the common will is not detached from the actual minds of the parties. The measure of reasonableness is not a disembodied mind that determines what consequences are probable in abstraction from the limited horizons of the contracting persons; for the totality that grounds contractual rights is formed by the interaction of individuated, not homogenized, selves. The standard of reasonableness is thus intersubjective rather than wholly external. The test is whether a particular consequence would have been foreseeable by both parties given their embedded-ness in a particular situation and their knowledge of unusual circumstances. The formula in Hadley v. Baxendale thus embodies dialogic community as the foundation of contractual rights. The skeptics are right, of course, to deny the power of this test rigidly to determine any particular result, but this hardly means that the rule is empty. Though not determinative of uniquely correct solutions, the test ensures that any solution consistent with it is just.

42. Chitty on Contracts, ed. A. G. Guest (London: Sweet & Maxwell, 1989), 52.

43. See Balfour v. Balfour, [1919] 2 K.B. 571 (C.A.).

44. See Smith v. Hughes, L.R. 6 Q.B. 597, 607 (1871); Hobbs v. Esquimalt & Nanaimo Railway Co., 29 S.C.R. 450 (1899); Staiman Steel Ltd. v. Commercial & Home Builders Ltd., 71 D.L.R. (3d) 17, 22 (Ont. H.C.J. 1976).

45. See Hurley v. Eddingfield, 59 N.E. 1058 (Ind. S.C. 1901).

46. See Holmes, Common Law, 204; Lon Fuller, "Consideration and Form," 41 Col. L. Rev. 799 (1941); John Swan, "Consideration and the Reasons for Enforcing Contracts," in Barry Reiter and John Swan, eds., Studies in Contract Law (Toronto: Butterworths, 1980), 29.

47. Atiyah, Consideration in Contracts, 60-61.

48. See Holmes, Common Law, 199 ff.

49. Holmes seems to have acknowledged this; see Common Law, 214: "A covenant or contract under seal was no longer a promise well proved; it was a promise of a distinct nature, for which a distinct form of action came to be provided."

50. See J. B. Ames, Lectures on Legal History and Miscellaneous Legal Essays (Cambridge: Harvard University Press, 1913), 150: "[a] simple contract debt, as well as a debt by specialty, was originally conceived of, not as a contract, in the modern sense, that is, as a promise, but as a grant."

51. Atiyah, Consideration in Contracts, 9.

52. See Pao On v. Lau Yiu, [1979] 3 All E.R. 65, 76 (P.C.). This is not to say that the bargain may not be avoided for other reasons—for example, unconscionability or the court's refusal to lend its aid to a transaction (such as a promise to pay a policeman for performing no more than his duty) tending to corrupt the administration of justice.

53. See Stilk v. Myrick, 170 E.R. 1168 (1809); Gilbert Steel Ltd. v. University Construction Ltd., 67 D.L.R. (3d) 606 (Ont. C.A. 1973).

54. See, e.g., Barry Reiter, "Courts, Consideration, and Common Sense," 27 Univ. Toronto L. J. 439 (1977); Swan, "Consideration and the Reasons," 30-33; Waddams, Law of Contracts, 102 ff. See also Restatement (Second) of Contracts (St. Paul: American Law Institute Publishers, 1981), sec. 89(a).

55. See, e.g., Atiyah, Consideration in Contracts, 12: "It is in fact quite plain on the authorities that the presence of a benefit or a detriment is neither a sufficient nor a necessary condition for the enforcement of a promise, and that therefore a definition of consideration in terms of benefit or detriment is simply inaccurate." (Emphasis in original.) See also Waddams, Law of Contracts, 90.

56. Westman v. Macdonald, [1941] 4 D.L.R. 793 (B.C.S.C.).

57. Hamer v. Sidway, 27 N.E. 256 (N.Y.C.A. 1891).

58. The situation changes, however, if during the performance of the contract facts come to light that would entire the party seeking modification of the agreement to rescission under the equitable doctrine of common mistake; see Linz v. Schuck, 67 A. 286 (Md. C.A. 1907). Under these circumstances, equity regards the initial price as inadequate consideration for performance, hence treats the first agreement as rescinded and the modification as creating a new agreement.

59. Consider, however, the case of forgiving a debt. A creditor promises to forgo his right to the full debt in return for prompt payment of a part. Here again part payment is not good consideration for the promise because there is a preexisting contractual duty to the creditor; see Foakes v. Beer, 9 App. Cas. 605 (H.L. 1884). However, while formal right will not enforce the creditor's unbargained-for promise, equity will prevent him from reasserting his full legal rights if his doing so would subject the debtor to his caprice (and so reduce formal right to an instrument of oppression)—that is, if the debtor has changed his position in reasonable reliance on the waiver; I try to reconcile these principles in the discussion of promissory estoppel (sec. 7.1). The situation changes, of course, if the debtor refuses to pay any part of the debt unless the creditor agrees to take a part in satisfaction of the whole. Here formal right will not enforce the creditor's promise for want of consideration, nor (even assuming debtor's reliance) is there any equitable ground for preventing the creditor from reasserting his full rights, since the debtor is the one exploiting a dependency.

60. Here we are interpreting the significance of mistake and fraud as negating the relation of will to will rather than consent. This seems more consistent with the paradigm of formal right, for which consent consists in formal voluntariness and is therefore negated only by nonvolitional behavior or by coercion. Although it is common to regard mistake as negating consent, there is support for the view presented here; see J. Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991), 190-192.

61. Kennedy v. Panama Royal Mail Co., L.R. 2 Q.B. 580, 587 (1867), per Blackburn, J.

62. Smith v. Hughes, above n. 44.

63. See Rosenfeld, "Hegel and the Dialectics of Contract," 247-249.

64. See L'Estrange v. Graucob, [1934] 2 K.B. 394.

65. See Goss v. Lord Nugent, 110 E.R. 713 (1833); Hawrish v. Bank of Montreal, [1969] S.C.R. 515.

66. Prenn v. Simmonds, [1971] 3 All E.R. 237 (H.L.),

67. Atiyah, Consideration in Contracts, 12-18.

68. See Chitty on Contracts, 114, and cases cited therein.

69. See Gordley, Modern Contract Doctrine, 201-208. For a discussion of formal right's requirement of equivalence in exchange, see Benson, "Hegel and Contemporary Contract Theory," 1187-1196.

70. See Schnell v. Nell, 17 Ind. 29 (1861).

71. Here we must note that Hegel himself apparently did not draw this conclusion from formal right. In par. 77 of the Philosophy of Right, he refers approvingly to the Roman law doctrine of laesio enormis, according to which a contract was void if the price agreed to was less than one-half of the commodity's market value. Hegel says that this doctrine reflects the principle that a valid contract is an exchange of equivalent values. If this is indeed the rationale for laesio enormis, it is difficult to see how the doctrine can be reconciled with the abstract foundations of formal right. The latter rests on the premise that the free will alone has normative force. By contrast, the doctrine of laesio enormis (as interpreted by Hegel) implies that the will's choices are constrained by the utility schedule of a universal subject that has internalized and rendered commensurable the preferences of discrete individuals. But if the free will need not defer to the preferences of any concrete individual, why should it bow to those of a superindividual? The normative authority of market value conflicts with the abstract foundations of formal right. Moreover, if Hegel is right about laesio enormis, then that rule has little to do with the modern, common-law doctrine of unconscionability, which (as we shall see) focuses on the improvidence of a bargain rather than on lack of equivalence. Thus, suppose I buy a sandwich on a train for more than twice the price it costs in the city. On Hegel's reading of laesio enormis, the latter would presumably invalidate this contract, but the common law probably would not (if one objects that the train is the relevant market, then the response is that there is then no reason not to narrow the market further to any particular transaction, in which case the external standard of market value collapses). By contrast, if an elderly widow without independent advice and without appreciation of the consequences promised every penny of her fortune for a delivery (for consumption purposes) of bubble gum at market price, the modem law of unconscionability will likely permit her to avoid the contract, whereas the Roman doctrine would not.

Having said all this, we must now question Hegel's interpretation of laesio enormis. The latter means "excessive damage" and the doctrine seems to have applied only to sales of land. Moreover, a laesio enormis rendered a contract voidable rather than void ab initio. All this suggests that the doctrine was a forerunner of the modern law of unconscionability in its concern for improvident rather than uneven bargains.

For an account of Hegel's theory of exchange value substantially in agreement with the one given here (but which ignores the problem of laesio enormis), see Richard Dien Winfield, The Just Economy (New York: Routledge, 1988), 109-110.

72. See Richard Epstein, "Unconscionability: A Critical Reappraisal," 18 J. Law and Econ. 293, 294-295 (1975). For a discussion of the conceptual problems involved in the idea of substantive unfairness as nonequivalence of values, see M. J. Trebilcock, "The Doctrine of Inequality of Bargaining Power: Post-Benthamite Economics in the House of Lords," 26 Univ. Toronto L. J. 359, 376-381 (1976).

73. See Smith v. Hughes, L.R. 6 Q.B. 597 (1871).

74. Couturier v. Hastie, 10 E.R. 1065 (1856); Cooper v. Phibbs, L.R. 2 H.L. 149 (1867).

75. See Bell v. Lever Bros. Ltd., [1932] A.C. 161 (H.L.).

76. See U.S.A. v. Motor Trucks, Ltd., [1924] A.C. 196 (P.C.).

77. Bourgeois v. Smith, 58 D.L.R. 15 (N.B.S.C. 1921); see also Paget v. Marshall, 28 Ch.D 255 (1884).

78. See Tilden Rent-a-Car Co. v. Clendenning, 83 D.L.R. (3d) 400 (Ont. C.A. 1978).

79. [1947] K.B. 130.

80. Id., 134.

81. [1951] 1 All E.R. 767 (C.A.).

82. Id., 769; see also Hughes v. Metropolitan Railway Co., 2 App. Cas. 439, 448 (1877), per Lord Cairns.

83. Combe v. Combe, 770.

84. See Post v. Jones, 60 U.S. (19 How.) 150 (1856). Does the involuntariness of the drowning man's (A's) promise mean that he could also avoid a bargain in which he promised the rope salesman (B) market price for a rope? Technically, he could successfully defend against a suit for breach of contract but not against a suit for restitution. Since formal right views any agreement formed in this situation as involuntary, it would allow A to bypass contract and take B's rope, but B would have a valid restitutionary claim. The result cannot be different simply because A bargained rather than took.

85. See Archer v. The Society of the Sacred Heart of Jesus, 9 O.L.R. 474 (Ont. C.A. 1905).

86. The reason for nonenforcement in all these examples is that the person cannot consistently with the end-status that is the source of its rights treat as optional an interest essential to that status, so that its assent is involuntary in the eyes of the law. This principle cuts across threats ("sign if you value your life"), offers (the drowning man example), and cases unspecifiable as either threats or offers apart from a prior theory of entitlements (e.g., duress of goods); hence it reveals the inadequacy of the threat-offer distinction as a criterion of coercion. For views of coercion resting on this distinction, see Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987), 204-221; Fried, Contract as Promise, 96-99. For an approach that (strangely) makes a finding of coercion depend on considerations of economic efficiency and institutional competence, see Michael Trebil-cock, The Limits of Freedom of Contract (Cambridge: Harvard University Press, 1993), chap. 4.

87. [1975] 1 Q.B. 326 (C.A.).

88. It is no accident, therefore, that the earliest examples of equitable relief for unconscionability are cases involving forfeitures of land on a debtor's default; see Howard v. Harris, 23 E.R. 406 (1683).

89. This account of the unconscionability doctrine is not meant to describe the actual reasons given by Lord Denning in Lloyd's Bank v. Bundy but rather to suggest a rational basis for the doctrine. Lord Denning sometimes delivers himself of formulations suggestive of our account, but in the main he seems to regard an unconscionable transaction as one in which unequal bargaining power has produced an exchange of unequal values.

90. See, e.g., Hart v. O'Connor, [1985] A.C. 1000, 1024 (P.C.); Mundinger v. Mundinger, 3 D.L.R. (3d) 338 (Ont. C.A. 1969); Marshall v. Canada Permanent Trust Co., 69 D.L.R. (2d) 260 (Alta. S.C. 1968).

91. See U.S. Uniform Commercial Code, art. 2-302 (Official Comment): "The principle [of unconscionability] is one of prevention of oppression and undue surprise and not of disturbance of risks because of superior bargaining power."

92. See Sherwood v. Walker, 33 N.W. 919 (Mich. S.C. 1887); see also Solle v. Butcher, [1950] 1 K.B. 671 (C.A.); Magee v. Pennine Ins. Co., [1969] a W.L.R. 1278 (C.A.).

93. Simmons v. Evans, S.W.2d 295 (Tenn. S.C. 1947).

94. Krell v. Henry, [1903] 2 K.B. 740 (C.A.).

95. Since the standard of equivalence is the concurrence of the parties' wills in their particular transaction, there is no lack of equivalence simply because one party knows of the other's ignorance of conditions affecting or likely to affect the market price of the product. Thus, in Laidlaw v. Organ, 15 U.S. 178 (1817), Organ bought tobacco from Laidlaw without informing him of a change in market conditions (the lifting of the British blockade of New Orleans) likely to drive up the price. The Supreme Court rightly held that, absent fraudulent misrepresentation, the contract was enforceable against Laidlaw.

96. This is the position of the Restatement (Second) of Contracts, sec. 90. See also Walton Stores (Interstate) Ltd. v. Maher, 62 A.L.J.R. 110 (H.C. 1988).

97. Above n. 96.

98. See Walton Stores v. Maher, above n. 96, at 115, 134. Brennan, J. saw promissory estoppel as a method of protecting the promisee's reliance; see Walton Stores, above n. 96, p. 126. In The Commonwealth v. Verwayen, [1990] 64 A.J.L.R. 540, a majority of the Court (including Mason, C.J.) emphasized that promissory estoppel works not to enforce promises but to avoid detriment to the promisee.

99. Above n. 79.

100. See A. Kronman, "Contract Law and Distributive Justice," 89 Yale L.J. 472 (1980).

101. Id., 495-497.

102. See A. Kronman, "Paternalism and the Law of Contracts," 92 Yale L. J. 763, 773 (1983).

103.      Kennedy, "Distributive and Paternalist Motives," 624-649.

104.      This is the argument of E.J. Weinrib; see "Legal Formalism," 970-971.

105. Compare Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 105-109.

106. But legislatures may also actualize the fight of intention by confining freedom of contract within welfare constraints (e.g., factory safety standards) for the benefit of those who, because of extreme need, are likely to acquiesce in harmful bargains.