Sex, Lies, and the Duty to Disclose

In recent decades, the law has recognized the injustice and inefficiency perpetrated as a result of the traditional doctrine of caveat emptor, and has come to enforce limited duties to disclose material information. This is true except in the context of agreements made between those involved in intimate relationships. In spite of compelling evidence of the injustice and inefficiency generated by nondisclosure in the context of negotiating agreements between intimates, the law generally imposes no duty to disclose. This Article illustrates this point with examples of drawn from three settings that typify bargaining between intimates. It concludes that the effect of permitting nondisclosure in agreements between intimates is unjust both at the individual and societal level, and argues in favor of subjecting these agreements to contemporary rules favoring disclosure of material information.