The Myth of the 'Opportunity to Read' in Contract Law

28 Pages Posted: 21 Jul 2008 Last revised: 20 Feb 2013

See all articles by Omri Ben-Shahar

Omri Ben-Shahar

University of Chicago Law School

Date Written: July 18, 2008

Abstract

Standard form contracts in consumer transactions are usually not read by consumers. This "unreadness" of contracts creates opportunities for drafters to engage in unfair trade practices. Various doctrines of contracts and consumer protection law address this concern. One of the prominent solutions coming out of recent proposals for reform is to give individuals a more substantial opportunity to read the contract before manifesting assent. With the greater opportunity to read, more transactors will actually read the terms and assent to the boilerplate will be more "robust." This Essay argues that solutions that focus on providing consumers an opportunity to read are useless, and can potentially be harmful. Most likely, greater opportunity to read would not produce greater readership of contracts - not the type that can help people make informed decisions - and the purpose of this solution would not be achieved, and could have unintended consequences. Even if the compliance with the requirement of opportunity-to-read is fairly cheap (e.g., giving consumers access to the boilerplate in advance), making this a central feature of the legal regulation of standard form contracts makes little sense. The paper ends by proposing non-legal approaches to making the contract terms more transparent, by building on market devices such as ratings and labeling.

Suggested Citation

Ben-Shahar, Omri, The Myth of the 'Opportunity to Read' in Contract Law (July 18, 2008). U of Chicago Law & Economics, Olin Working Paper No. 415. Available at SSRN: https://ssrn.com/abstract=1162922 or http://dx.doi.org/10.2139/ssrn.1162922

Omri Ben-Shahar (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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