Regulating standard form contracts

Thesis

Standard form contracts, in the sense of ‘contracts of adhesion’ (or ‘boilerplate,’ to use a term currently fashionable in North America), have long been a subject of legal controversy. One reason is that, beyond a few terms which are negotiated, the remaining standard form terms are seen as imposed, in tension with the basic idea of Contract as the law of voluntary obligation. Another reason is the common perception that these terms tend to include drafter-favouring ‘unfair’ terms. Yet, adhesion contracts are also viewed as indispensable in contemporary society, due to the important socio-economic functions they serve. The question, then, is how can the concerns about imposition and unfairness be addressed whilst still permitting adhesion contracts?

Private Law doctrine of longstanding precedent is unsuited to address these concerns. Regulation therefore exists in several common law jurisdictions. However, reviews, reforms, and academic commentary reveal continuing concerns. Meanwhile, other places like Canada and the United States have not been persuaded to follow any existing model of comprehensive regulation. With these issues recently of renewed prominence, ideas on new potential solutions are much-needed. Given this background, the thesis seeks to answer the question: how should regulation optimally address the issues of imposition and unfairness in adhesion contracts?

Authors: Moore, M

• Alternative title: Designing a new regulatory response to the issues of imposition and unfairness in contracts of adhesion
• DOI: 10.5287/ora-n1k9azmjz
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English