Consumer contracts for credit: Private law in socio-econo-historical context
My project has two components. The first is a history of the reception of credit cards in Canadian law in the late 1960s. The second is a work of private theory, in which I explore the relevance of this history for contract theory. My aim is to consider the institution of contract holistically, as a hybrid of both common law rules and specialized regulation. Whether one believes credit cards are a boon or a pernicious form of exploitation, it is undeniable they have affected, if not completely transmuted, our relationship to money and debt. Credit cards are, at their core, an agreement with a provider; but when these contracts began appearing in Canada a number of protective rules were put in place. These rules shaped the institution and paved the way to the total integration of credit cards into our lives. They also responded to specific social and economic concerns and served to balance the ambition of freedom of contract with the realities of standard forms and a concern for fairness and equality. Most importantly for my purposes, they are relevant to the institution of contract. Regulation is rarely seen as being internal to contract law; but it affects most of the contracts ordinary Canadians agree to. Theories of contract are, for the most part, theories of justice: they consider whether certain uses of state power are appropriate and can ground coherent critiques of state action. Only they cannot play this role if they only consider contract at its most conceptual. Some contracts – like credit card agreements – form the basis of social changes that go far beyond the relationship between a consumer and an issuer. They deserve the same level of scrutiny as foundational concepts of contract; only, this require attentiveness to the socio-econo-historical.