Controlling Fairness in Standard Form Contracts: What Can Courts Do, and What Should They Do?

Research output: Article

Abstract

Unfair terms in standard form contracts are one of Contract Law's most notorious and enduring problems. The vast transnational literature on this, now a century old, has long worked out its contours, even as it still searches for more effective solutions. The central problem can be simply stated: A form drafter's ability to dictate terms-characteristically unknown and unbargained by the parties who are form recipients-allows, in the absence of any other legal control, for the incorporation of one-sided terms favouring the drafting party. The implications are significant: The exhaustive list of terms typical of such contracts, combined with the pervasiveness of their use in modern society, make unfair standard form terms a feature of the economic system which systemically and significantly contributes to the post-industrial era's astounding inequalities of wealth and power. These disparities are expanding now more than ever in the present age of technology, with the increasing migration of social activity online-governed by standard form contracts, made via "click-wrap", "browse- wrap" and the like.

Original languageUndefined/Unknown
JournalAll Faculty Publications
Publication statusPublished - Jan 1 2022

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