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

In their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin argued that, notwithstanding its physical presence in the document (or on a computer screen), boilerplate without actual agreement lacks contractual force. The authors advocated the technique of shared meaning analysis as a solution to the challenges presented by boilerplate contracts. By referring to “shared meaning,” Kar and Radin proposed that courts enforce “[t]he meaning that parties produce and agree to during contract formation that is most consistent with the presupposition that both were using language cooperatively to form a contract.” I recommend that courts and legislatures reject shared meaning analysis. The likely practical ramifications of this empirically untested proposal – which is designed to delete numerous boilerplate contract terms – would be the roiling of markets by precluding buyers and sellers from maintaining confidence in their agreements.

The current system provides more effective measures to safeguard private ordering.