After the Battle of the Forms: Commercial Contracting in the Electronic Age
I/S: A Journal of Law and Policy for the Information Society, Vol. 4, p. 271, 2008
74 Pages Posted: 19 Apr 2007 Last revised: 22 Jun 2015
This is a substantially expanded and revised version of a paper posted earlier, which will appear in the peer-review journal, I/S: A Journal of law and Policy for the Information Society.
Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Part One, I briefly describe the (relatively) settled law under U.C.C. 2-207, describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, describe the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting, and then discuss how the growth of electronic contracting will eliminate the battle of the forms that triggers the application of U.C.C. 2-207 and also will make it difficult for commercial parties to replicate the force-field protection to which they have grown accustomed.
In Part Two, I discuss the two primary doctrinal options available to address contracting realities for commercial parties once the electronic age of contracting has eliminated the battle of the forms. The debacle surrounding Revised Article 2 suggests that the only plausible response as the theater of operations shifts from the battle of the forms to the world of electronic contracting will be judicial rather than legislative. Although unconscionability analysis might be a plausible doctrine to address egregious cases, I conclude that the doctrine is too closely aligned with consumer protection to make it a viable theory for commercial parties. Instead, I argue that rehabilitating the doctrine of reasonable expectations holds the most promise for addressing the commercial contracting world after the battle of the forms. This approach enjoys the benefit of being grounded in Karl Llewellyn's theory of the validity of standard form contracts, is consonant with one of the important guiding principles of Article 2, and will be sufficiently defined by the commercial context to permit consistent application by courts policing the margins of acceptable contracting practices.
Keywords: Contracts, Sales, Electronic Contracting, Battle of the Forms, Unconscionability, Reasonable Expectations, Karl Llewellyn
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