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Comparative Contract LawBritish and American Perspectives$
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Larry DiMatteo and Martin Hogg

Print publication date: 2015

Print ISBN-13: 9780198728733

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198728733.001.0001

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At the Limits of Adjudication

At the Limits of Adjudication

Standard Terms in Consumer Contracts

Chapter:
(p.439) 21 At the Limits of Adjudication
Source:
Comparative Contract Law
Author(s):

Aditi Bagchi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198728733.003.0046

This chapter engages in a theoretical discourse to make the case for standard terms regulation in the US. It reviews a number of theses that have been advanced for not enforcing standard terms in consumer contracting including: consent (or lack thereof); reality of cognitive errors; market failures; substantive unfairness; and democratic degradation. The chapter concludes that the best rationale is captured by the notion of ‘cumulative externalities’; the mass use of standard terms has shifted the question of regulation from a matter of private law to one to be addressed in the public domain. Because of this shift, the entire legal framework needs to be retooled, requiring both legislative and judicial intervention.

Keywords:   contract law, US law, consumer contracts, standard terms, regulation, reform

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