Argument #2: Courts Should Not Make Policy. Another concern likely to be raised is legislating from the bench. This concern is most salient in connection with the consideration of contextual purposive intent, which considers policy issues such as economic efficiency and fairness. Yet, the basic assumption defenses currently existing already consider policy.233 In fact, to the extent that a legislative body has adopted the UCC, a refusal to incorporate these policy objectives undermines legislative authority and is itself judicial legislation.234 This Article does not promote any new policies in connection with existing basic assumption defenses. What it does advocate is the separation of the two central concerns addressed by existing basic assumption defenses. In each defense, there is an intent inquiry regarding the parties’ contractual purpose.235 Currently, mistake defenses limit that inquiry to the facts at the time of contract formation, while changed circumstances doctrines consider facts arising after contract formation.236 More importantly, however, formalistic constraints subvert the underlying purpose of contract law. We infer intent from actions, and context gives meaning to actions. To require performance where circumstances have undermined contextual purposive intent is to ignore the very reason why we enforce contracts.237 To illustrate this on a very basic level, imagine that a parent makes a promise to her child that they will go swimming later in the day. The child falls asleep in the car and does not awaken until several hours later presented itself when the contract was made.”). 233. See Xxxxxxxxx, supra note 2, at 747, 757 (discussing fairness and efficiency as the basis for the bargain theory and principles of unconscionability).
