Got Wheels?: Article 2a, Standardized Rental Car Terms, Rational Inaction, and Unilateral Private Ordering
49 Pages Posted: 12 Mar 2008
This Article examines the modern system of unilateral private ordering facilitated by form contracts in the context of standard form contracts for renting a car. Modern law accepts the presumption of a free market and free bargain in the setting of form contracting despite the lack of bargaining power on the consumer side of the deal. The article assesses the importance of defaults and presumptions in contract law, and presents the results of an empirical review of standard agreement forms of ten leading rental car companies, noting examples of significant alterations to common law defaults. The article also explores the doctrine of unconscionability as it applies to form contracting and examines the historical basis for a lenient standard for contract formation assent. It questions whether extension of the lenient, hands-off approach for bilateral transactions makes sense in the context of unilateral private ordering. Ignoring the issue of bargaining power in most situations, Article 2A provides scant protection for consumers in the context of leasing personal property. Ultimately, the article questions whether the system of constrained judicial oversight that insulates bargaining from governmental control in private ordering historically should extend to the context of standardized consumer contracts that emphatically dispense with the bilateral approach to consensual transactions.
Keywords: contract, form contract, article 2A, UCC, unconscionable, adhesion, unilateral private ordering, efficient inertia
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