Boilerplate: What Consumers Actually Think About It
23 Pages Posted: 28 May 2020
Date Written: 2019
One of the most difficult problems in modem contract law is the status of standard terms-often called "boilerplate"-in consumer transactions. On the one hand, standard terms are good because they reduce costs and increase efficiency and predictability. On the other hand, they can be used to impose unfair terms on consumers and even to evade important public policies. There is thus a vast and growing literature on the topic.
We know for a fact that most consumers do not read standard terms. They will not read them before they sign the writing or click "I agree" or "Buy now" on their screen. They will not read them when they open the box and find them inside. This behavior is entirely rational and entirely expected-no one could function if she had to read the terms and conditions of every web site she happened to visit or every product she purchased. We know that she will ignore the terms, yet enforceability of contract terms under both current law and the proposed new Restatement of Consumer Contracts will depend on whether the consumer had the opportunity to read the terms-or, more accurately, opportunity to ignore them-before the purchase is made.
But is that opportunity of any value to consumers? Do they see any distinction between terms on a web site and terms that accompany the product when it arrives? A vast and growing legal literature focuses on this question, but it is curiously limited. We know what judges and lawyers think that consumers think about boilerplate terms. But what consumers themselves think is still missing. Although business school scholarship is rich with studies of consumer beliefs and consumer behavior, little of that research seems to have diffused itself into the legal world.
Our goal here is to help fill that gap. To begin to answer this question, we use a scenario-based experimental design to explore consumer attitudes toward common contract terms. In particular, we focus on (a) their understanding of baseline legal rules and commercial norms; (b) their view of the enforceability and fairness of standard terms that change those rules; and (c) whether their views of these issues change depending on whether they had a chance to view the terms before agreeing to the contract. Our goal is to determine whether current contract law-and the changes to the law recommended by the drafters of the proposed, RCC-reflect distinctions that have any meaningful value to consumer buyers.
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