Standard Form Contracts and the Erosion of Consent: Is There No Turning Back?

Abstract This Article draws on sources from Canada, England, France, Germany, and the United States to appraise Western law’s treatment of standard form contracts. Courts currently recognize standard clauses as express contractual terms, even when it would not be reasonable to expect adhering parties to read and understand them. Standard forms are undemocratic because they replace common default rules by “the law of the firm.” Reviewing standard forms to suppress unfair clauses is not enough. It is proposed that the courts should adopt a higher threshold for consent by taking seriously the opportunity to read, which was always a condition for incorporating standard clauses. Courts should require the drafting party to produce a readable form, taking into consideration a form’s intended audience, content, and context. A form that is not readable should be denied incorporation into the contract. In most instances, a contract exists independently of the form and is effective without it.