Consumer Assent to Standard Form Contracts and the Voting Analogy
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Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown terms. Academic commentary is largely critical of the phenomenon of binding a consumer to the unknown and unread terms in the form contract, because it cuts against the paradigmatic conception of contracting as a quintessentially consensual activity. However, when the process of consumer assent to form contracts is compared to voting for a political representative in an election, the legitimacy and conceptual propriety of consumer assent to the unknown terms becomes more tolerable. Consumers who “vote” for a merchant to “represent” them in the performance of a transaction entrust the merchant to look after the state of affairs of the parties’ contract, much like voters essentially entrust the governmental administration of policy matters to their elected representatives. Consumers who assent to a form contract with a merchant cannot escape the binding effect of the form just because they are later confronted with disappointed expectations in the form of undesirable contract terms (such as an arbitration term), just as a voter who votes for a candidate ordinarily cannot prematurely terminate the official’s term in office after being confronted with disappointed expectations in the form of undesirable legislation or enactment of policy. In both instances, concerns of stability dictate the need for the assent to be binding for the duration of the originally contemplated commitments. However, a consumer can ultimately choose whether to transact with the merchant subsequently in the marketplace, just as a voter may choose whether to re-elect the political candidate after his initial term in office. In this way, consumer autonomy is vindicated, and the binding nature of assent to form contracts seems more defensible.
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