The Perverse Consequences of Disclosing Standard Terms

60 Pages Posted: 29 Feb 2016 Last revised: 2 Jan 2018

Date Written: 2017

Abstract

Although assent is the doctrinal and theoretical hallmark of contract, its relevance for form contracts has been drastically undermined by the overwhelming evidence that no one reads standard terms. Until now, most political and academic discussions of this phenomenon have acknowledged the truth of universally unread contracts, but have assumed that even unread terms are at best potentially helpful, and at worst harmless. This Article makes the empirical case that unread terms are not a neutral feature of American commerce; instead, the mere fact of fine print inhibits reasonable challenges to unfair deals. The experimental study reported here tests the hypothesis that when a policy is disclosed as a boilerplate contract term, it appears more legitimate, both morally and legally, than if it is disclosed elsewhere -- even if the term would be plausibly subject to legal challenge in either case. Subjects from an in-person sample recruited by the Wharton Behavioral Laboratory were randomly assigned to read about a consumer policy communicated either as a standard term in a form contract, or as a company policy available on the firm's website. They were more likely to think that harsh policies were legally enforceable, and morally defensible, when the policies were in the fine print -- and more likely to object to a policy that was publicly available but not within the standard terms. Disclosing onerous terms up front does not affect consumer choice ex ante but creates a problematic assumption of enforceability when the terms turn out to be troublesome ex post. These results were also replicated using a sample of subjects from the general population. If correct, this phenomenon presents a substantial challenge to the traditional economic analysis of private bargaining in contract. The Article concludes with an analysis, in light of these findings, of doctrinal, political, and market mechanisms for policing unfair terms.

Keywords: Standard form consumer contracts of adhesion, empirical legal studies, law & psychology, terms & conditions, fine print, disclosure, enforcement, norms, information asymmetry, morality, legitimacy, procedural fairness, unreadability

JEL Classification: D12, D63, D86, K12

Suggested Citation

Wilkinson-Ryan, Tess, The Perverse Consequences of Disclosing Standard Terms (2017). Cornell Law Review, Vol. 103, p. 117, 2017; U of Penn, Inst for Law & Econ Research Paper No. 16-5; USC CLASS Research Paper No. CLASS17-12. Available at SSRN: https://ssrn.com/abstract=2738567 or http://dx.doi.org/10.2139/ssrn.2738567

Tess Wilkinson-Ryan (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
372
Abstract Views
2,174
rank
79,082
PlumX Metrics