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Hastings Law Journal

Abstract

The notion that there is in general contract law a “duty to read” persists in the decisions of American courts. This Article explores the general question of what it may mean to say that there is a “duty to read,” and concludes by suggesting what role (if any) that doctrine should play in our present-day law of contract. The Article begins by examining various ways in which the “duty to read” is commonly articulated, and compares it to other contract law concepts: the “duty to bargain in good faith” and the “duty to mitigate damages.” The Article next considers a variety of ways in which the “duty to read” rule may be countered or overcome, and goes on to note and evaluate policy arguments for the rule. Having thus sketched the legal background, the Article then proceeds to examine a selection of some two dozen recent cases which discuss and in some instances rely on this rule. Finally, after enumerating a number of ways in which the rule should not be applied, the Article concludes by suggesting that the “duty to read” rule would better be denominated as “a presumption of knowing assent,” and asks what role that principle should play in present day contracts jurisprudence.

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