ABSTRACT
Even while developing proposals to reform consumer contract law, consumer contracts scholars rarely dispute the categorization of consumer transactions as ‘contracts.’ Yet consumer transactions – where sellers unilaterally draft terms that consumers rarely read or understand – clearly defy the traditional imagery of contracts as bilateral interactions between autonomous, roughly-equal parties. Indeed, it is the contractual framework which undermines the intelligibility of the law governing consumer transactions, and which ultimately impedes any meaningful reform. The Article responds to this conceptual deadlock by developing a theoretical, consumer-oriented alternative to the traditional imagery of contract. The proposed theory integrates the critical ‘contract-as-product’ literature with sociological insights from Actor-Network Theory (ANT), in order to capture both the systematic nature of consumer transactions and the structural asymmetry among consumers and sellers. Notably, consumer transactions are seen as embedded in larger processes of production and marketing, wherein the standard terms and the ‘precontractual’ environment play a key role in inducing consumers into transactions. A critical reading of Williams v Walker-Thomas Furniture Co fleshes out the theory’s normative implications, namely its support of ex-ante regulation of standard terms rather than ex-post litigation on consumer assent or unconscionability.
Faust, Abigail, A Theory Of Consumer Transactions (August 1, 2024).
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