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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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Form Contracts

Form Contracts

Chapter:
(p.521) Thirty-Seven Form Contracts
Source:
Foundational Principles of Contract Law
Author(s):

Melvin A. Eisenberg

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199731404.003.0037

Chapter 37 concerns form contracts. That term refers to a writing that is in the form of a contract (hence the name), some of whose terms were negotiated or at least discussed by the parties, but most of whose terms were prepared by one party without any negotiation, discussion, or even knowledge by the other party. Form contracts consist of two elements. The first element is a real contract and is comprised of terms that were negotiated, or at least discussed and agreed upon, by the parties prior to the contract’s finalization. The second element consists of terms attached to the real contract that were prepared by the form-giver prior to the transaction between the parties, without negotiation, discussion, or knowledge by the form-taker. Such terms are referred to as boilerplate. This chapter considers whether boilerplate should be enforceable.

Keywords:   form contracts, boilerplate, form-giver, form-taker, real contract

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