Category Archives: Unconscionability and Unfair Terms
Baffi and Parisi, ‘The Double Edge of Freedom of Contract’
ABSTRACT Standard economic reasoning suggests that expanding an individual’s choice set cannot reduce welfare because additional options may always be ignored. This intuition underlies the traditional economic justification for freedom of contract. This paper shows that the monotonic relationship between choice and welfare may break down in bargaining environments characterized by asymmetric bilateral monopoly and […]
Miriam Cherry, ‘Abuse of Contract: A Proposal for a New Cause of Action’
ABSTRACT With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other […]
Protect Borrowers and Ben Kaufman, ‘Rent Now, Pain Later: How “Rent Now, Pay Later” Loans Put Working People at Risk’
ABSTRACT Amid rising housing costs in the United States, a new market of ‘Rent Now, Pay Later’ (RNPL) loans has emerged, offering short-term credit to tenants struggling to meet rent payments. This paper examines the structure and practices of RNPL lenders, drawing on market analysis, consumer complaints, and publicly available financial and regulatory data. The […]
Nancy Kim, ‘Consent and Dispute Resolution Clauses’
ABSTRACT Dispute resolution provisions are routinely found in the boilerplate section of all types of contracts, ranging from negotiated paper agreements to website Terms of Service. The law permits the parties to a contract to change the default rules that would otherwise govern their transaction, including how any disputes will be resolved. The ability of […]
Andrea Boyack, ‘Modern Consumer Contracting and Online Terms’
ABSTRACT Company-crafted terms and conditions that supposedly govern modern consumer transactions are more lengthy, complex, and ubiquitous than ever before. Proliferation of online terms has been accompanied by increased judicial willingness to deem a contract duly formed based on passive and unknowing indicia of assent. Today’s consumer contracts are presumptively synonymous with a company’s online […]
Enrico Baffi, ‘The Regulation of Contracts Entered under Coercion: Positive Law in the Light of Efficiency and Fairness’
ABSTRACT This Article examines the regulation of contracts formed under coercive conditions, focusing on cases in which consent is formally voluntary but substantively constrained by duress, necessity, or dependence. It argues that doctrines traditionally justified in terms of fairness or protection of the weaker party are best understood, and more coherently interpreted, through the lens […]
Arnow-Richman and Verkerke, ‘Defusing Disclaimers’
ABSTRACT This Article tackles the ubiquitous problem of employer-drafted ‘disclaimers’. Disclaimers are standardized provisions, found in a variety of human resources documents, that confirm employees’ at-will status. They typically preserve employers’ right to change the terms of employment at any time, sometimes without advance notice. The most careful disclaimers also renounce the legal significance of […]
‘Slowing Down the Clicks’
Brett Frischmann and Moshe Y Vardi, ‘Better Digital Contracts with Prosocial Friction-in-Design’, 65 Jurimetrics Journal 1 (2025). Brett Frischmann and Moshe Y Vardi’s article, ‘Better Digital Contracts with Prosocial Friction-in-Design’, wrestles with perhaps the most vexing problem facing contract law today – what to do about the proliferation of digital contracts that infest our screens. […]
‘New Trends in Teaching Contract Law’ – special issue of Law Teacher
€ Introduction to The Law Teacher special issue on ‘New Trends in Teaching Contract Law’ (Fred Motson and Marton Ribary) € Teaching contracts backwards: benefits of starting with remedies in contract law pedagogy (Seyed MA Zavarei) Revitalising unconscionable dealing in English law through interjurisdictional teaching (Raul Madden) Teaching contract law across multiple jurisdictions (Muhammad Zubair […]
Dagan, Gergen and Heller, ‘Liberal Consumer Contract Law’
ABSTRACT The point of consumer contract law is to ensure most of life remains legally boring. This law succeeds when we can enjoy a cup of coffee or secure a mortgage without focusing on any of the contracting tasks. By protecting our time and attention, the law turns both mundane and constitutive consumer transactions into […]