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The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically discussed contract law in terms of promise (an obligation ostensibly created by one person) rather than in terms of consensus and contract (an obligation created by two or more persons). Only in about 1800 did lawyers and judges in cases of assumpsit begin regularly to apply modern contract theory – the highly generalized theory based on the will or consensus of the contracting parties.


Jurisprudence | Law | Legal History


© 1989 The American Society for Legal History, Inc. This article has been published in the Law and History Review and is free to view and download for private research and study only. Not for re-distribution or re-use.