Actual Agreement, Shared Meaning Analysis, and the Invalidation of Boilerplate: A Response to Professors Kar and Radin

By Feldman, Steven W. | Missouri Law Review, Summer 2019 | Go to article overview

Actual Agreement, Shared Meaning Analysis, and the Invalidation of Boilerplate: A Response to Professors Kar and Radin


Feldman, Steven W., Missouri Law Review


"While new commerce on the Internet has exposed courts to many new  situations, it has not fundamentally changed the principles of  contract." (1)  
TABLE OF CONTENTS  ABSTRACT                                                             711 INTRODUCTION                                                         713    I. OVERVIEW OF "PSEUDO-CONTRACT AND SHARED MEANING ANALYSIS"      716       A. Pseudo-Contract and the Assimilationists                    716       B. Shared Meaning Analysis                                     718       C. The Authors and Neo-Gricean Linguistics                     719       D. The Aims of Shared Meaning Analysis                         721   II. THE USE OF LINGUISTICS IN CONTRACT INTERPRETATION              721       A. Linguistics and Contract Interpretation: A Controversial    722          Relationship       B. Shared Meaning Analysis as Evidence at Trial                724  III. BOILERPLATE, STANDARD FORM CONTRACTS, AND ADHESION CONTRACTS:  726       DEFINITIONAL ISSUES       A. The Overly Broad Definition of Boilerplate                  726       B. The Benefits and Detriments of Boilerplate                  728   IV. ASSIMILATIONIST CONTRACT THEORY AND BOILERPLATE: HAS THE LAW   733       KEPT PACE WITH TWENTY FIRST CENTURY COMMUNICATIONS       TECHNOLOGY?       A. Specht v. Netscape Communications Corp                      734       B. ProCD, Inc. v. Zeidenberg                                   736       C. Boilerplate and Computer Technology                         739    V. ACTUAL AGREEMENT, SHARED MEANING ANALYSIS, AND CONTRACT        740       INTERPRETATION       A. The Goals and Components of Shared Meaning Analysis         741       B. Cooperation and Good Faith during Contract Formation        743       C. The Restatement (Second) and 'Common Meaning' of the        746          Parties       D. The Courts and "Common Meaning" of the Parties              748       E. The Competing Standards of Contractual Assent: The          749          Subjectiv and Objective Theories          1. The Objective Theory Further Explained                   751          2. When Consumers Click "I Agree"--An Ambiguous Action?     752          3. The Policy of the Objective Theory                       753       F. The Subjective Theory Compared                              756       G. How Much Sharing is Needed for Shared Meaning?              757       H. The Ramifications of Shared Meaning Analysis                759   VI. SHARED MEANING ANALYSIS AND FREEDOM OF CONTRACT                761       A. General Principles of Freedom of Contract                   761       B. Freedom of Contract and Boilerplate                         763  VII. A PARTY'S DUTY TO READ AND UNDERSTAND CONTRACTS                765 VIII. PRECEDENTS CHALLENGING THE USE OF BOILERPLATE                  769       A. Freedom of Contract                                         769       B. Cases Contesting Mutual Assent                              770       C. Explaining Mutual Assent when Actual Agreement is Missing   774       D. Resolution of the Conflicting Decisions                     775 CONCLUSION                                                           777 

INTRODUCTION

Analyzing a difficult subject that "pervades" contract law and that is "vital" to the national economy, (2) scholars have produced scores of articles about the legal and societal aspects of boilerplate contract terms. (3) Professors Robin Bradley Kar and Margaret Jane Radin contributed to the conversation with their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis. (4) The authors argued that, notwithstanding its physical presence in the document (or on a computer screen), (5) boilerplate without actual agreement lacks contractual force. (6) The authors claimed that the widespread use of pseudo-contracts and their "fake terms" invited "burgeoning forms of [consumer] deception." (7) To Kar and Radin, the prevalence of boilerplate has so undermined mutual assent that it has jeopardized the legitimacy of contract itself. …

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