Eric Goldman of Santa Clara has written (illustrated?) The Crisis of Online Contracts (as Told in 10 Memes). Here is the disappointingly memeless abstract:
This essay explains the “crisis” of online contracts, the legal fiction that consumers have assented to online contract terms when we have ample empirical evidence that they didn’t really mean to assent. The essay describes the crisis, and some possible solutions, using 10 Internet memes. The essay concludes that the crisis of online contracts may be the least-worst option among the alternatives.
H/T: ContractsProf Blog
Fun paper, but it unfortunately leaves out perhaps the simplest solution: provide that the only terms that are enforceable are those to which the consumer has specifically assented or would reasonably assume to be part of the contract. I guess that’s a variant of “government-mandated contract terms,” but it’s pretty different from a rule that says “contract must have terms X, Y, and Z in it and no others.”
Such a solution would force businesses to bargain for any terms that aren’t reasonably assumed to be part of the contract. The business will have to decide whether the additional terms are worth the transaction costs. It does leave some uncertainty about exactly what a reasonable consumer would assume to be part of the contract, and perhaps that is where government has more of a role to play, essentially safe harboring certain types of terms.
In fairness, the paper does note that it doesn’t cover every possible solution, but I worry that it throws the towel in on fixing internet contract assent too quickly.