ABSTRACT
Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of the company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design.
There is no consensus on how widespread or severe abuse of contract is. Some consumer law scholars have warned of dangers inherent in granting companies unrestrained power to sneak waivers into their online terms, but others contend that market forces adequately constrain potential abuse. On the other hand, in the absence of adequate consumer knowledge and power, market competition might instead fuel the spread of abusive boilerplate provisions as companies compete to insulate themselves from costs. The new Restatement and several prominent scholars claim that existing protective judicial doctrines siphon off the worst abuses among adhesive contracts. They are willing to accept those abuses that slip through the cracks as the unavoidable cost of a functioning, modern economy …
Boyack, Andrea J, Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights (March 6, 2024), Iowa Law Review, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No 2024-03.
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