Category Archives: Unconscionability and Unfair Terms
Peter Benson, ‘Consideration Without Economic Duress: Reframing the Analysis of Contractual Modifications’
ABSTRACT Prevailing approaches to the contractual enforceability of modifications revise or dispense with the requirement of consideration and invoke economic duress to rule out unfair, inequitable, or bad faith modifications. Enforceability turns effectively on the absence of economic duress. But economic duress is a doctrine of avoidance. It does not answer the contractually prior step […]
Aditi Bagchi, ‘Fair Terms or Free Terms? The Dual Commitments of Contract Regulation in the United States’
INTRODUCTION American contract law has long been committed to competitive, private price setting. This commitment is captured in the basic tenets of contract law and competition policy, as well as the political discourse surrounding regulation of the market. Judges and legislators alike are reluctant to preempt private ordering. General contract law allows parties to set […]
Lagioia, Jabłonowska, Liepina and Drazewski, ‘AI in Search of Unfairness in Consumer Contracts: The Terms of Service Landscape’
ABSTRACT This article explores the potential of artificial intelligence for identifying cases where digital vendors fail to comply with legal obligations, an endeavour that can generate insights about business practices. While heated regulatory debates about online platforms and AI are currently ongoing, we can look to existing horizontal norms, especially concerning the fairness of standard […]
Rachel Landy, ‘Tech Contracts and the No-Plaintiff Problem’
ABSTRACT Much ink has been spilled over how antitrust law could address the effects of Big Tech’s market dominance. But when dominant firms include unfair terms in their agreements with business customers, contract law should be able to step in, too. Contract law has two principles that are inherently appropriate to invoke when unfair terms […]
Russell Korobkin, ‘Contract Boilerplate and Constitutional Public Policy’
ABSTRACT The modern economy is awash in standard form contracts filled with ‘boilerplate’ terms that are drafted by repeat players and routinely accepted by consumers, employees, and businesses without reading or understanding their content. Standard form contracts weaken but do not subvert party autonomy but they do undermine contract efficiency. While American courts attempt to […]
Enrico Baffi, ‘Voluntary but Voidable? Consent, Coercion, and the Limits of Contractual Freedom’
ABSTRACT This Article examines the treatment, across several legal systems, of promises obtained through pressure – in cases of duress and of the exploitation of a state of necessity – and asks to what extent that treatment can be understood as designed to promote economic efficiency. As an operational tool, it proposes the criterion of […]
Kantorowicz-Reznichenko, van Heusden and Kantorowicz, ‘Consumers’ Rights in the Shadow of the Brand: A Conjoint Experiment on the Valuation and Trade-Offs of Contractual Rights’
ABSTRACT With the rise of standard contracts, tensions persist between protecting consumers from unfair terms and preserving freedom of contract. A key concern is that consumers may waive legal rights, often unknowingly, particularly when dealing with trusted brands. To address this, we conducted a conjoint experiment with a representative US sample to evaluate how consumers […]
Travis Gilly, ‘Phantom Consent: Formation Failure, Inaccessible Interfaces, and the Collapse of the Clickwrap Shield’
ABSTRACT Every consumer platform on the internet sits behind the same front door: a wall of terms presented through an interface engineered to be clicked rather than read, followed by an Accept button. Courts enforce what happens at that door under an objective theory of assent that asks whether a reasonably prudent offeree would have […]
Sam Wise, ‘Analyzing the Legal Enforceability of BDSM Contracts between Sex Workers and Clients’
ABSTRACT Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable […]
Schwartz and Sepe, ‘Freedom of Contract at Common Law’
ABSTRACT We defend the common law conception of freedom of contract against criticisms that unregulated contractual freedom permits strong parties to impose unjust terms on weak parties. Common law courts enforce contracts when the parties are informed, competent and free from coercion, and performance of such a contract would not impose costs on nonparties. These […]