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Editors’ Commentary on Chapters 20 and 21 (Law Reform)
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Published:December 2015
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Professors Christian Twigg-Flesner and Aditi Bagchi look at one of the central problems of modern contract law—the enforceability of standard terms in consumer contracts. Professor Peter Alces previously questioned the consent-based theory of enforcing such terms in his provocative chapter entitled ‘The Death of Consent?’ (Chapter 3). At the end of his chapter, he notes that the dissonance between consent and standard form contracts may be an insolvable one. But, nonetheless, contract law must ask the question: what does consent mean in the context of standard form consumer contracts? He concludes that ultimately standard form contracts mean what the superior bargaining power says it means. That is not to say that contract law (doctrine of unconscionability) and courts (creative contract interpretation) do not have a say in their enforceability.
Alces’s insight is based on the reality of cognitive abilities on the nature of rationality. He suggests that some contracting parties may be more rational decision-makers than those that were around at the dawn of contract law. But, in standard form contracting, it is an imbalanced rationality–irrationality: ‘[W]ith the increased rationality of subordinate parties (who have to come to realize the relative irrationality of reading forms) has come the increased adeptness of dominant parties at exploiting transactional disparities.’1 It is this exploitation that Bagchi and Twigg-Flesner address in their chapters. However, each is working within the context of different legal regimes—one that has confronted the need for the regulation of standard terms (UK–EU) and the other in a system (US) still trying to justify the consent-based nature of standard forms.
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