One of the most difficult problems in modern 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? [read entire article here]



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