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Contract Consideration and Behavior

David A. Hoffman & Zev J. Eigen
85 Geo. Wash. L. Rev. 351

Contract recitals are ubiquitous. Yet, we have a thin understanding of
how individuals behave with respect to these doctrinally important relics. Most
jurists follow Lon Fuller in concluding that, when read, contract recitals accomplish
their purpose: to caution against inconsiderate contractual obligation.
Notwithstanding the foundational role that this assumption has played in
doctrinal and theoretical debates, it has not been tested. This Article offers
what we believe to be the first experimental evidence of the effects of formal
recitals of contract obligation—and, importantly too, disclaimers of contractual
obligation—on individual behavior. In a series of online experiments, we
found that participants were less likely to back out of an agreement, forgoing
personal gain, when they were endowed with a small extra sum of money at
the time of contracting, and when they acknowledged that they were not forming
a contract. They were more likely to back out of their original commitment
when their agreeing was accompanied by a recital of consideration, and in a
control condition in which the natural consideration of bargained-for exchange
prevailed. Younger, male respondents were generally more likely to
back out of their agreements across all conditions than were women and older
participants. The reported experimental results suggest both the descriptive
weakness of theorized accounts of private control over contract enforceability
and the general value of experimental work about contracting behavior.

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