by Tom Stilp JD, MBA/MM, LLM, MSC, DBA, January 8th, 2025
In the past, there was a fundamental belief in the freedom of contract and honoring the legal intentions of the contracting parties. With technology, the concept of freedom of contract is dying. Contracts are impossibly long, typically one-sided, and are not even read according to multiple empirical studies (Synder, et al., 2019; Ben-Shahar, 2009; Korobkin, 2003). In research involving over 48,000 monthly visitors and 90 companies, less than 1/10th of 1% (.001) of buyers clicked on terms, usually spending less than two (2) minutes to view the contract (Bakos, et al., 2014). That means fewer than 10 people out of 10,000 made any attempt at all.
Even if contracts were read, the contract provisions cannot be changed. So, most people probably think, why bother?
We suggest that technology has actually made contracts worse.
The basic elements of contract, like a three-legged stool, depend on (1) offer, (2) acceptance, and (3) consideration (i.e., an exchange of value). Acceptance means informed consent, or as courts often say, a meeting of the minds as to the terms of the offer, but if the terms are not even read, there really is no acceptance. Instead, with a click of a button, and an on-line “yes,” the contract is completed.
The illusion of acceptance means that merchants and companies sophisticated in contract matters are incentivized to include an array of particular clauses in their favor because these provisions will go unchallenged.
There is no harm until the “gotcha” moment, and by then, most people believe it is too late to undo acceptance of terms they never understood nor even read.
But experienced counsel will know about remedies, such as revocation of acceptance (meaning the undoing of acceptance), rights of recission and rejection of terms. We have handled hundreds of such cases where mistakes of the past can, in fact, be changed.
References
Bakos,Y., Marotta-Wurgler, F. and Trossen, D. (2014). Does anyone read the fine print? Consumer attention to standard-form contracts. The Journal ofLegal Studies, 43(1), 1-35.
Ben-Sahar, O.(2009). The myth of the “opportunity to read” in contract law. EuropeanReview of Contract Law, 2009, 1-28.
Korobkin, R. (2003). Bounded rationality, standard form contract, and unconscionability. Univ. of Chicago Law Review, 70(4),1203-1296.
Stilp,T. (2020). Contracts: The parol evidence rule and contract interpretation. Illinois Institute for Continuing Legal Education, §11.1.
Synder, F. and Mirabito, A. (2019). Boilerplate:What consumers actually think about it. Indiana Law Review, 52, 431-453