Anglo-American contract law sometimes acknowledges that the legal construct of “objective consent” is distinct from actual subjective consent. But contract law also labors to obscure this distinction and conflate the two concepts – indeed, the very term “objective consent” performs this function. Economic analysis of law sometimes engages in a similar conflation by treating the efficiency of an arrangement – as determined by a judge (or an academic theorist) – as a perfect proxy for subjective consent to that arrangement.

Basing contractual obligations on judicial assessments of outward phenomena means contract law depends at least in part on judges’ subjective notions of policy and fairness. Conflating this court-centered process with subjective consent is descriptively inaccurate. It is also faulty normative reasoning, as it invokes simple libertarian rhetoric to justify a more complex, statist process. The conflation problem is especially relevant with respect to form contracts, which fit uneasily with traditional notions of subjective consent. Courts and theorists should avoid the easy invocation of “consent” as the basis of contract law and instead be more specific in disclosing– and defending – the normative assumptions behind their prescriptions.

This chapter argues that the current harmonisation of European contract law will eventually fail. Supporters of the harmonisation suggest that the divergence in national contract laws not only generates unnecessary costs for cross-border trade, but also undermines fair competition in the European market. Thus, legal harmonisation is the necessary solution. Unfortunately, the harmonisation movement has failed to understand the crucial distinction between default and mandatory rules. The current and proposed harmonisation measures have focused on the development of sets of default rules. In fact, divergence in national contract laws is mainly due to differences in their mandatory rules.

This harmonisation effort suffers from two major defects. Firstly, it assumes that the national default rules are in need of harmonisation in order to facilitate trans-border transactions. In fact, there is no conclusive empirical evidence that differences in national default rules have retarded European trade. Conversely, several existing studies have indicated the opposite: that harmonisation of default rules at the regional level actually increases the complexity of contract law and trans-border trading. Secondly, even if a regional harmonised contract law were produced, it would not provide the certainty needed to warrant the effort due to problems of multi-jurisdictional interpretations. The chapter concludes that a European contract law regime, at this time and in its current form, will lead to an unnecessary layer of legal complexity to European trade.