Private Law Theory

ABSTRACT
The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing ‘duty to read’ doctrine is that consumers fully consent to all terms when they sign or click. The scholarly objection is that such consent is fully or at least partially invalid because of the lack of an idyllic notion of full knowledge seen as prerequisite for valid consent. This article resists this conclusion, and posits that consumer consent to form contracts is pragmatically and realistically sufficient for contractual enforcement purposes. The consumer makes a reasonable choice given the circumstances (including by choosing not to read while also choosing to sign), and thus autonomy concerns are satisfied. A similar conclusion has been reached in the medical informed context where the stakes are arguably higher than consumer contracts. Contract law, in the form of contracts under seal, was long familiar with the concept of ironclad enforcement of terms which were not read or understood by illiterate persons, and this notion may have persisted in the minds of the early judges first adopting the duty to read in the form contract context. Finally, emerging empirical evidence of consumer attitudes reveals that they have embraced the legal concept of their full consent to all terms in boilerplate upon their signature (or click). Therefore, although there may still be need for potential policing of problematic or unfair terms in boilerplate contracts, attacking consent is likely not a profitable or coherent tool for this purpose. Resort to other tools, such as statutory regulation, are more sensible. Consent to form contracts is sufficient.

Barnes, Wayne, Defending Form Contract Consent (February 2, 2025), Texas A&M University School of Law Legal Studies Research Paper.