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

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.