Asymmetric Information in Consumer Contracts: The Challenge that is Yet to be Met

Abstract:     
The interdisciplinary contribution to the field of consumer standard form contracts is dominated by economics. Prominent law and economics scholars argue that economic analysis of consumer contracts leads to the conclusion that, by and large, there is no need to intervene in the market for contract terms as long as these contracts are offered in competitive markets. Yet, this Article seeks to demonstrate that the model which is employed to justify this anti-intervention approach is seriously flawed. Accordingly, relying on such a model can lead policy makers to reach unjust decisions.

In light of the inadequacy of market forces to reach equilibrium where efficient consumer form contracts are being drafted, it becomes clear that some intervention in the market for consumer contract terms is necessary. However, this inference should not imply that current main paths - regulation by legislatures and judicial control over the substance of consumer form contracts - provide cost-effective avenues. Unfortunately, as this Article illustrates, sometimes they are, but more often they are not.

Thus, this Article establishes that current approaches to consumer contracts do not provide a satisfactory solution to the problems that such contracts pose to traditional contract law. The immediate result of this failure is that sellers frequently incorporate inefficient and unjust contract terms in their form contracts. Consumers, therefore, are left without adequate protection.

Number of Pages in PDF File: 53

Keywords: Consumer contracts, asymmetric information, law and economics, marginal consumers, consumer law

JEL Classification: K12, K20, L40

Accepted Paper Series