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University of Miami Law Review

Abstract

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know the content of what they are manifesting agreement to. That is, what looks like a contract, scholars argue, cannot really be a contract because of this lack of meaningful consent. Therefore, scholars have long argued for some form of sophisticated judicial contract doctrine, to recognize assent to the known and “dickered” terms, while discarding some or all of the problematic and unread terms. The courts, however, have steadfastly refused to engage in such surgical alteration of what is, for them, an “all-or-nothing” act of simply agreeing to be bound to the entire contract. The consumer has long been held to have a “duty to read” what she signs, and failing to do so will not change the courts’ willingness to find the entire contract enforceable (absent some finding of fraud, duress, unconscionability, or the like). At this stage, the judicial doctrine is mature enough—and has shown its relative imperviousness to scholarly proposals for doctrinal change—that it is unlikely that courts will suddenly become amenable to a revolutionary change in doctrine. Notions of precedent, predictability, and coherence augur for the likely permanence of the duty to read as enshrined judicial doctrine. A shift is needed. This article argues that legislative regulation is now the most likely vehicle through which effective policing of problematic boilerplate terms can come. Legislatures have already been gradually, and on a piecemeal basis, dictating that various specific contract terms are either prohibited or regulated for the last several decades (e.g., usury, covenants not to compete, waivers of the right of redemption). Therefore, given the enduring inflexibility of the duty to read, legislative regulation of boilerplate terms is the most likely path forward for addressing terms which are collectively perceived as problematic as a policy matter.

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