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Boilerplate--the fine-print terms and conditions that we become subject to when we click \"I agree\" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm.Boilerplateis the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.

The idea that contracts give legal force to a \"meeting of the minds,\" or a bargained-for exchange between two parties, is an old concept in contract law. Enforcement of a contract that satisfies this \"meeting of the minds\" furthers welfare maximization and individual autonomy by reinforcing a promise that both parties believed would make them better off. But in many modern contracts-especially those between businesses and consumers-a meeting of the minds never occurs. Rather, consumers almost never bargain for the terms. And often, they do not even know what the terms are. With respect to these \"contracts of adhesion,\" it is not clear that the standard justification for contract enforcement exists.

Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. Recent attempts to draw all boilerplate text into “contract” seek to end that struggle but have shifted contract law away from its traditional focus on enforcing parties’ actual agreements and common understandings. This has required a series of ad hoc “fixes” to contract law reminiscent of the medieval use of “epicycles” to try to square geocentric theories of planetary motion with recalcitrant observations of a nongeocentric universe. This shift has been transforming the meanings of contract law’s central concepts. We view the shift as an undiagnosed paradigm slip, resulting in a generalized theory of “contract” as a mere assumption of risk that allows private obligations to be created unilaterally without reaching the actual agreements required by core contract law principles. Some now call this new sort of obligation “contract.” But it is pseudo-contract, resembling contract without fulfilling its necessary conditions of validity. The recent paradigm slip into pseudo-contract raises a complex blend of linguistic, factual, conceptual, practical, normative, and doctrinal problems. Under the mantle of “contract,” the problems of pseudo-contract have remained largely hidden. In this Article we expose these problems and develop a more nuanced and coherent method of analysis - shared meaning analysis - that courts and other legal analysts can use to determine when any particular piece of boilerplate text does, or does not, contribute an actual term to a contract. Because facts about language have received insufficient attention in discussions of how boilerplate text may (or may not) contribute to contract meaning, we launch our analysis by developing several seminal insights into the dependence of meaning on social cooperation from the language philosopher Paul Grice. Drawing on his insights into language, we develop a contemporary definition of the shared meaning of a contract (or the “common meaning of the parties”) as that meaning that is most consistent with the presupposition that both parties were using language cooperatively to contract. We then offer a simple conceptual test that courts can use to discern this shared meaning, distinguish contractual from noncontractual uses of boilerplate text, and prevent contract from slipping into pseudo-contract. We pay particular attention to diagnosing deceptive or misleading uses of boilerplate text. Using examples ranging widely from clickwrap consumer contracts to high-end boilerplate contracts between sophisticated parties, we show how shared meaning analysis applies generally to many varieties of contract.

Abstract This study compares the approach that Qatari Civil Law No. 22/2004 (QCL) takes to standard terms with that taken by the UNIDROIT Principles of International Commercial Contracts 2016. The main difference between QCL and the UNIDROIT Principles, is that the QCL relates standard terms contracts with adhesion contracts. The latter are only concerned with strategic goods and services that are monopolized by the supplier. Another difference is the remedy; under the QCL, the judge has the authority not only to exempt the adhering party from the oppressive standard term, but to also amend that term. However, under the UNIDROIT Principles, surprising terms are invalid. The study recommends that the Qatari legislator remove the connection in the QCL between standard terms contracts and adhesion contracts, and limit judges' authority to exempting disadvantaged parties from oppressive terms.

Hiring a service is a moment of great importance once it builds the perception of the service value and quality. Some companies may deal with that, assuming a greater importance when elaborating their service contracts. Usually law professional people elaborate these documents, but this may include legal attributes, not considering the service to the customers, as well as the customers’ point of view. In times of increasing on customer focus, market and service orientation, a question can be posted: to what extent company contracts show service or customer orientation? This paper compares the service orientation degree for Cable TV contracts from five companies, based on a theoretical model developed to this purpose. From a conceptual model for servant contract, four dimensions were assessed: physical aspects, reasonableness, intelligibility and customer focus. After subject evaluation by eight judges, analyzing the validation index (CVI), it was found that the contracts show moderate orientation to serve. Furthermore, results show that the five surveyed company’s contracts showed a similar overall performance, i.e., none stood out over the other. The study presents important practical efficacy, because it can guide the Cable TV companies to adopt improvement strategies in elaboration of contracts, so that the contractual instruments be would reviewed of clauses that promote the sensation of better service to their customer. Thus, this article directs the manager to the aspect that deserves more attention, i.e, which dimensions require further refinement and direction to serve

[...]the article analyzes cases in both jurisdictions where courts have rejected the adhesive label and identifies the key evidentiary factors that motivated their analyses.

This text feactures standardized and adhesion contracts; next, an approach of its origin, proliferation is done in commercial contracts, and mutual conection with the phenomenon of abusive clauses. However, in principle, the large protection against abusive clauses only exists in consumer’s contracts. It gives rise to a problem, namely: is there a possibility to keep the judicial recognition for the defence against abusive clauses, in the cases of commercial contracts? This study claims it is. Este texto caracteriza o contrato padronizado e de adesão e, em seguida, aborda o seu surgimento, a sua proliferação nas relações contratuais civis e empresariais e a recíproca conexão com o fenômeno das cláusulas abusivas. Contudo, em princípio, a ampla proteção contra cláusulas abusivas só existe no âmbito dos contratos de consumo. Então, surge um problema: é possível sustentar a revisão contratual e a anulação de cláusulas abusivas nas relações contratuais regidas pelo Direito Civil e Empresarial? Este estudo afirma essa possibilidade.

El arbitraje de consumo, como mecanismo alternativo de resolución de contro­versias derivadas de las relaciones de consumo, ha sido un tema ampliamente discutido que hoy, sin embargo, es mayormente aceptado a nivel mundial. En razón de esta tendencia, es posible identificar en distintos ordenamientos jurídicos dos modelos que implementan el arbitraje de consumo, los cuales tienen diferentes implicaciones tanto para consumidores como para empresa­rios. Así, el presente artículo pretende –a partir del estudio de los dos modelos y de la principal normatividad colombiana– dar algunas luces sobre cual es el desarrollo que debe tener el arbitraje de consumo en Colombia para ser una herramienta efectiva y especialmente favorecedora para el consumidor.

The book examines Directive 93/13 on Unfair Terms in Consumer Contracts and its implementation with a two fold aim: first, to understand the extent to which the Directive has influenced and will influence fundamental notions and principles of contract law in the domestic legal systems of the Member States; second, it examines the extent to which the domestic legal traditions of the Member States have influenced the process of drafting of the Directive and, more importantly, will affect the way that the Directive is interpreted and applied in national courts. The focus is mainly on English law (including the 2005 Unfair Terms in Contracts Bill) and on Italian law, but frequent references are made to the French and the German systems. At the same time, the book has a broader, more ‘European’ concern, in that it aims to distill from the existing Community acquis and from the history and rationale of Directive 93/13 notions and concepts that could guide its interpretation. It is well known that Community law uses terminology which is peculiar to it, and that legal concepts do not necessarily have the same meaning in EC law and in the law of the various Member States: every provision of Community law must be placed in its context and interpreted in the light of its own objectives and rationale, and of the objectives and rationale of Community law as a whole. In this respect, this book aims to identify the contours and features of the emerging European legal tradition, and to assess the impact that this may have on the domestic traditions.

Described as a far-reaching betrayal of some of the most fundamental principles of American justice and as big a pro-business, pro-corporate ruling as Americans have ever seen from the Roberts' Court, the Supreme Court's decision in AT&T Mobility LLC v. Concepcion has the potential to reshape the landscape of complex civil litigation. Critics fear that Concepcion, which struck down a California common law doctrine barring certain class action arbitration waivers, has made it virtually impossible to invalidate an arbitration clause containing a class action waiver. Far from to the cataclysm predicted by critics, the impact of Concepcion in the lower courts has been modest. Most courts interpreting Concepcion simply read the decision as having pruned one of the most far reaching forms of unconscionability doctrine, leaving the bulk of the unconscionability jurisprudence intact. While Concepcion does make defeating motions to compel arbitration more difficult, there remain many strategies that will enable aspiring \"lunatics\" to sidestep Concepcion and continue pursuing their $30 claims.