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Sunday, April 04, 2021


Adam Levitin

Fun paper, but it unfortunately leaves out perhaps the simplest solution: provide that the only terms that are enforceable are those to which the consumer has specifically assented or would reasonably assume to be part of the contract. I guess that's a variant of "government-mandated contract terms," but it's pretty different from a rule that says "contract must have terms X, Y, and Z in it and no others."

Such a solution would force businesses to bargain for any terms that aren't reasonably assumed to be part of the contract. The business will have to decide whether the additional terms are worth the transaction costs. It does leave some uncertainty about exactly what a reasonable consumer would assume to be part of the contract, and perhaps that is where government has more of a role to play, essentially safe harboring certain types of terms.

In fairness, the paper does note that it doesn't cover every possible solution, but I worry that it throws the towel in on fixing internet contract assent too quickly.

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