Argument #3: A Dynamic Approach Is Unfair Sample Clauses

Argument #3: A Dynamic Approach Is Unfair. Some may ask, what about the other party, the non-avoiding party? Should his interests not be protected? The answer is that the other party’s interests are considered at each step of the proposed intent analysis. Volitional intent takes into account socially unacceptable behavior on the part of the other party, such as the making of threats or the use of intimidation, which does not so much protect the non-avoiding party’s interest as discern whether it is worth protecting at all. Cognitive intent analysis requires asking whether the parties discussed or considered the facts giving rise to the request for avoidance. Contextual purposive intent considers trade norms and fairness issues, such as the existence or availability of insurance.239 Finally, even where one or more facets of intent may be lacking, the contract may yet be enforced if the societal interest in the security of transactions is great enough, such as where both parties have fully performed, where there is reliance,240 or where the market is inherently speculative.241 238. Xxx Xxxxxxxxx discusses this point with respect to mistakes: “Some types of mistake provide a moral justification for not keeping a promise. Correspondingly, a promisee may act badly if she insists on full performance even after she has been made aware of such a mistake.” Xxxxxxxxx, supra note 51, at 1579. He further states that in some cases, two moral norms may conflict: [f]or example, the moral norm “don’t lie” is not inconsistent with the moral norm “venerate human life,” even though under certain circumstances venerating human life might require lying—as in lying to an assassin about his victim’s whereabouts. It does not lessen our commitment to truth-telling that we believe it is sometimes morally permissible not to tell the truth. Id. at 1581.