Private Law Theory

ABSTRACT
Modern consumer contracts are the bane of contract law and theory. Freedom of contract justifications are premised on party autonomy and transactional efficiency, but theories justifying contract enforcement fail to explain why the law should treat company crafted terms as presumptively binding on consumers. Consumer protection advocates point out that lower thresholds for manifesting assent endorsed by the recent Restatement of the Law of Consumer Contracts may result in consumers being bound to terms of which they were reasonably unaware. Other scholars point out that mere knowledge of company terms and conditions does almost nothing to protect consumers in any case because consumers are powerless to shape those terms. Indeed, in the face of negotiation impotency, it is inefficient and illogical for consumers to read, understand, and analyze a company’s boilerplate terms even when these are made available. Attempting to fit traditional contract rules to the modern consumer contract context results in a body of contract law that combines fantastical notions of assent with increasing government policing of ostensibly private contract terms …

Boyack, Andrea J, The Shape of Consumer Contracts (July 31, 2023), Denver Law Review, 2023.