Conversation, Cooperation, or Convention? A Response to Kar and Radin

Abstract

This is a response to Pseudo-Contract and Shared Meaning Analysis by Professors Robin Bradley Kar and Margaret Radin. Their article is a thoughtful and ambitious attempt to find a principled basis in the theory of contract formation for distinguishing what they see as the legitimate portion of the transaction – the “actual agreement” which is “cooperatively communicated” – from that which ought not to be enforced (usually the extensive unread boilerplate or click-through terms). While I am sympathetic to the policy aim, I resist the core of their thesis, which is that there is a discernible “actual agreement” arising from a “shared meaning” that is neither merely the objective manifestations of an agreement nor the individual subjective intentions of the parties. I have two objections to the thesis: (a) the authors’ exercise of looking at boilerplate or shrink wrap agreements through the lens of Paul Grice’s conversational maxims does not provide a helpful demarcation of that portion of the consumer interaction that is truly “shared”; and (b) the thesis is simply a more sophisticated version of a particular conception within contract theory, the problematic “meeting of the minds” metaphor. As a result, I caution against rushing into shared meaning analysis as a broader basis for understanding contract formation or interpretation..

Keywords: contract formation, Grice, unconscionability, shared meaning, meeting of the minds, objective, subjective, agreement, Cooperative Principle

JEL Classification: K12