Contracting with students: Re-thinking Higher Education as invitation to treat

Abstract

This paper takes as its starting point the idea of universities contracting with students, and of the increased consumer protections for students that such contracts afford. It begins by considering what is at stake in creating a legally binding contract. Using examples from contract law, it then argues that it is difficult to think of a university Higher Education in such terms. While contracts in relation to matters such as campus accommodation offer benefits and protections for both parties, contracting with students over their educational experience is highly problematic because of the precise stipulation of terms that is required. The paper seeks to understand what is distinctive about a Higher Education experience through a concept from contract law known as an invitation to treat. The paper argues that the notions of invitation and negotiation that are at its heart better illustrate the possibilities that a Higher Education afford.