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The Dignity of CommerceMarkets and the Moral Foundations of Contract Law$
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Nathan B. Oman

Print publication date: 2017

Print ISBN-13: 9780226415529

Published to Chicago Scholarship Online: September 2017

DOI: 10.7208/chicago/9780226415666.001.0001

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(p.133) Chapter Seven Boilerplate
The Dignity of Commerce

Nathan B. Oman

University of Chicago Press

Preprinted contracts offered on a take-it-or-leave-it basis and signed unread are a ubiquitous feature of modern life. The enforcement of such boilerplate agreements has been widely criticized by legal commentators because the consent offered to the terms seems extremely attenuated. Boilerplate agreements, however, help to foster commerce by allowing for mass production and transactional innovation. The market argument, rather than looking to voluntary consent as the touchstone of contractual legitimacy, argues in favor of enforcing such agreements so long as there are feedback mechanisms in place to prevent their abuse. Voluntary consent provide one such mechanism, but there are others, such as competitive markets and legal regulation. This analysis dramatically downgrades the role of consent in the normative justification of contract law, suggesting that much of the normative debate about boilerplate is wrongly focused on voluntariness and consent.

Keywords:   contracts of adhesion, boilerplate, voluntary consent, consent

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