Southern California Law Review, Vol. 84, p. 1, 2010
47 Pages Posted: 19 Feb 2010 Last revised: 22 Oct 2010
Date Written: February 18, 2010
Consumer contracts are pervasive. Yet, the promises that make up these contracts are becoming increasingly empty, as sellers reserve the power to unilaterally modify their contracts. While some modifications benefit both sellers and consumers, others increase seller profits at the consumer’s expense. The law’s goal should be to facilitate good modifications, while preventing the bad ones. Currently this goal is not met. The problem is twofold. First, consumers fail to appreciate the risk of unilateral modification and thus fail to demand a commitment, by sellers, to avoid inefficient modifications. Second, and more important, even if consumers demanded a commitment to make only mutually-beneficial modifications, existing commitment mechanisms – consumer assent to modifications, judicial review of modifications and seller reputation – are inadequate. We propose a novel commitment mechanism: Change Approval Boards (or CABs) will be added as parties to consumer contracts. These CABs will selectively assent to, or withhold assent from, contractual changes that sellers wish to make, according to the CAB’s modification policy. We envision a market for CABs – multiple CABs, each striking a different balance between flexibility and security, offering a range of modification policies from which consumers can choose. The market-based CAB system promises to deter abusive term changes while retaining the flexibility to change consumer contracts when change is justified.
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