Eric A. Zacks


By any measure, section 211 of the Restatement (Second) of Contracts is a disappointment. The section purported to ensure the benefits of standardized contracts by presuming assent to all terms when a contract is signed or adopted. At the same time, section 211 made it unreasonable for drafting parties to rely on terms if the drafter knew or should have known that the other party would not have assented had the other been aware of such terms. Nevertheless, section 211 is rarely cited with respect to any standardized contract dispute, and even where cited, it rarely provides relief to the non-drafting party. Judges’ unwillingness to embrace section 211 is particularly pronounced and problematic in the online contracting context for consumers. This Article explains that section 211’s disuse can be attributed in part to its doctrinal formulation, which erects difficult barriers for non-drafting parties seeking relief. Perhaps more importantly, judges historically have been reluctant to disturb standardized consumer contracts, regardless of the applicable doctrine. Accordingly, it is useful to frame the problem of modern standardized consumer contracts in terms of how social and judicial conceptions of assent interact with doctrine andwhat forces can influence those conceptions. Judicial attitudes, for example, could be influenced by empirical evidence that examines consumer perceptions of modern standardized contract formation and the terms of such contracts. When confronted and internalized by judges and regulators who seek to determine appropriate relief, that kind of evidence can generate meaningful relief and meaningful reform.

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