51 Pages Posted: 8 May 2008
This article addresses the increasingly common problem of buyers finding important contract terms inside the box of a newly purchased item instead of learning about them before or during purchase. The failure of courts to develop a satisfactory approach to deciding which contact terms sellers may provide after purchase is of great significance in light of the rapid proliferation of rolling contracts. In this article, I propose a mechanism that will ensure that sellers have the flexibility to defer presentation of some terms but that will also protect purchasers against the unfair imposition of unexpected and important terms arriving at a time when purchasers are very unlikely to read or act on them.
The mechanism I propose, which I refer to as Template Notice, is an intermediate form of disclosure that meets the pressing concerns of both buyers and sellers. It would require sellers to provide the following vital information before or during purchase: a brief and clear list or summary of terms that the buyer will not see until after purchase, a statement that the buyer will have the right to reject the terms and avoid the transaction, and a description of how to exercise that right. Template Notice is a reasonable and workable restriction on the ability of sellers to defer the disclosure of contract terms. Sellers would still be able to defer terms, but to a more limited extent than is currently permitted.
Keywords: contracts, rolling contracts, template notice, sellers, purchasers, sales
JEL Classification: K12
Suggested Citation: Suggested Citation
Friedman, Stephen E., Improving the Rolling Contract. American University Law Review, Vol. 56, No. 1, 2006; Widener Law School Legal Studies Research Paper No. 08-53. Available at SSRN: https://ssrn.com/abstract=1129881