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The Autonomy Default Paradigm in Contract Law
HANOCH DAGANt & MICHAEL HELLER
You can scribble an agreement on a napkin orhire lawyers to negotiate a hundred-page contract.
Either way, most ofyour contractual obligations will not be in your document. They will be in the
background rules contract law applies absent your express agreement. Justifying these defaults
is a core task of contract theory; getting them right is a core task of contract law.
This Article introduces the autonomy default paradigm, a conceptually coherent and normatively
attractive account of contract law defaults. We show that defaults are justified to the extent they
enhance our autonomy, understood as self-determination. They vindicate our autonomy through
two pathways: (a) empowering defaults that proactively facilitate people's autonomy and (b)
safeguarding defaults that protect our future selves and ensure relational justice.
Often, the parties to commercial contracts are legally sophisticated players who just want to get
wealthier. There, the welfare-maximizing default is often the autonomy-enhancing one. But for
the vast run of contracts getting jobs, getting married, buying homes, buying stuff-autonomy
defaults may diverge from their efficiency-based counterparts. In these cases, the law often does
and always should optfor autonomy defaults, even at the price of some efficiency.
t Elizabeth J. Boalt Distinguished Professor of Law, Berkeley Law School & Founding Director of the
Berkeley Center for Private Law Theory.
tt Lawrence A. Wien Professor of Real Estate Law and Vice Dean for Academic Affairs, Columbia Law
School. We thank Oren Bar-Gill, Avihay Dorfman, Meirav Furth, Mark Gergen, Josh Getzler, Roy Kreitner,
Tamar Kricheli-Katz, Ethan Leib, Jeannie Paterson, Alan Schwartz, Rob Stevens, Johannes Ungerer, and
workshop participants at Oxford and Tel-Aviv for their helpful comments. Thanks to Emma Ziegler for superb
research assistance. I am grateful to the Bernard H. Kayden Faculty Research Fund at Columbia Law School for
providing research support for this article.
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