Private Law Theory

ABSTRACT
This article proposes a market design mechanism for standard contracts in relationhips between firms and consumers, based on the preparation, by a public authority, of a sectoral standard contract intended to serve as a benchmark. The standard is constructed in such a way as to maximize the expected surplus for the majority of consumers, eliminating or reducing contractual opacity, unexpected clauses, and litigation costs. Companies remain completely free to deviate from the public model, but the deviation must be signaled through a highly salient and standardized notice, which makes the consumer immediately aware of the departure from the recommended standard. In the event of deviation, it is up to the consumer to choose whether to enter into a contract that deviates from the model prepared by the public authority or to turn to a different firm. The article is part of the economic analysis debate on default rules, altering rules, and the failure of informed consent in mass markets, proposing a different approach to the problem, focused on the design of information signals rather than on procedural restrictions on opt-out. Taking a critical approach to the theories of Ayres, Ayres and Schwartz, and Gillette, it argues that an informationally salient opt-out can reduce decision-making errors without increasing procedural costs, preserve contractual innovation, and improve dynamic efficiency. The efficiency analysis identifies the conditions under which the model is often preferable to the main regulatory alternatives and discusses its possible failure modes, showing how the proposed approach offers a convincing response to the structural problems of consumer contracts.

Baffi, Enrico, Public Standard Contract as Benchmark and Informed Opt-Out (December 24, 2025).