ABSTRACT
In this piece, I propose a new standard for determining what constitutes assent, as a matter of contract formation, within the domain of electronic consumer contracting. In my formulation, the threshold test should reject the ‘take-it-or-leave-it’ arrangement dominant in the marketplace and reified by recent proposals before the American Law Institute (‘ALI’) under the moniker ‘blanket assent’. It should do so in favor of a default rule that would require any electronic form proposing contract terms to permit at least a minimal amount of negotiation around terms seeking waiver of rights from consumers, in order to meet the manifestation of mutual assent standard applicable to all contracts performed by competent contracting parties. Requiring negotiation and negotiability from forms will cure the current problem of consumer incapacity widely recognized (though not widely named) in the consumer marketplace; a status that defines the plight of the consumer in the modern consumer contracting domain (a point I make in a related, earlier piece). I argue that technology has advanced to such an extent that the absence of greater negotiability can no longer be defended with regard to electronic forms. As a foil, I use an example from the online sports gaming business as an example of this phenomenon. Given what this technology demonstrates, we are now able to see how technology may facilitate ever greater consumer interface around pricing, risk taking, and risk prediction, in relation to qualitative events, features and outcomes. I use this technology in conjunction with contract law and norms from tort law to argue that a recent decision by the Massachusetts Supreme Judicial Court, involving Uber’s electronic form, opens the door, as a conceptual matter, to requiring technological advances of the sort I depict from the gaming domain, as a means of protecting consumer contracts from its current unintelligibility (and consumers from harms), and recovering, for consumers, some amount of contracting capacity.
Lewis, Michael, A Negotiated Instrument: Proposing a Safer Contract for Consumers (And Not Just a Smarter One) (March 8, 2021).
First posted 2021-03-10 11:19:52
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