GEORGIA LAW REVIEW - StephanKinsella.com

19791 CORPORATIONS AND RIGHTS 1291
one line of argument would have it,lL6 then all the arbitrariness we
want to avoid can enter. And indeed, if the object of acceptance is
in subsequent disagreement, then the original act of agreement itself
is called into question.
In order to avoid these difficulties, then, we have to do what we
did in the case of general relationships, viz., look to the property
foundations of the agreement. Not only will this give empirical and
hence objective content to the interaction, but it will capture the
transfer aspect of a contract as well. Expectations fit uncomfortably
here at best; while it is true that we create expectations in others
when we act, these can hardly be objects of transfer. (In truth, they
describe only our views about what has in fact been transferred.) I
suggest, therefore, that we treat each contractor as having transferred
to the other the title to something he owns, some future act
or course of action, some piece of tangible property. What each
party accepts, then, is the exchange of titles between the parties,
not the subjective expectations that this exchange may have created.
For the transfer to be morally legitimate, however, and hence for
the rights and obligations that result from it to be justified, it is
imperative that the acceptance that consummates it be voluntary.
Thus the process must be free from duress, which occurs when one
of the parties uses or threatens to use force in order to extract the'
agreement, thereby vitiating the act of acceptance itself. With duress
we have two distinct takings: the use or threat of force in such
a situation is an intentional taking; and the involuntary transfer of
the object thus extracted amounts to a further taking. While it is
possible, with care, to include "undue influence" under the concept
of duress-for here it is arguable that consent is vitiated by the acts
of one of the parties-it is not possible to include so-called
"economic duress." That A was "compelled" by his own private
necessity to enter into an agreement with B is no reason to set that
agreement aside. (Necessity of one kind or another is what leads to
all exchanges.) If B has a perfect right to make no offer-and of
course he does-then he has a right to make the offer that A accepts.
To be sure, A could accept B's offer and then have it adjusted by
the court on a finding of "substantive unconscionability"; but in
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5 88, at 162-63 (1959). These disagreements in
LLVee, eg., 3 R. POUND, JURISPRUDENCE
contract theory often relate as much to questions of evidence or proof as to substantive
questions about the nature of the contractual agreement. But these are distinct issues, and
should be kept so, however closely related they may be.