Abstract:
This article examines the conceptual and practical problems posed by so-called boilerplate contracts (or standard form contracts, contracts of adhesion) through the lens of the Supreme Court of Canada’s recent jurisprudence on contract law. Specifically, can non-negotiable and one-sided boilerplate ‘contracts’ satisfy, not only the standard requirements of contract formation, but also the court’s recognition of an organizing obligation of good faith and its inherently fact-sensitive approach to contractual interpretation? Through an analysis of two recent applications of the court’s new contract law jurisprudence, this article concludes that non-negotiable boilerplate contracts – which are more accurately termed ‘products’ – cannot and should not be shoehorned into the existing categories of contract law. Consequently, contract law is dead yet again. Law reform is necessary.
MacLean, Jason, The Death of Contract, Redux: Boilerplate and the End of Interpretation (October 3, 2016). Forthcoming (December 2016) Canadian Business Law Journal.
First posted 2016-10-07 06:44:06
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