Toward a Fairer Model of Consumer Assent to Standard Form Contracts: In Defense of Restatement Subsection 211(3)

Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers' interests.

Section 211 of the Restatement (Second) of Contracts creates such a tool. Subsection 211(3) provides: "[wihere the [merchant] has reason to believe that the [consumer] would not [assent] if he knew that the writing contained a particular term, the term is not part of the agreement." This rule has thus far been largely rejected and marginalized by courts and commentators as running afoul of the traditional duty to read, but in fact the rule is quite sensible. It is squarely grounded in the objective theory of contracts, which provides that a party's manifestations of assent are taken to mean what a reasonable party would think they mean. It also advances contract law by taking into account recent research into the cognitive limitations of human decisionmaking.

Businesses should not be allowed to unfairly exploit consumers' limitations by inserting grossly unfair terms into their contracts. Although the unconscionability doctrine is an important fail-safe protecting consumers entering standard form contracts, subsection 211(3) is also needed to resolve the dissonance between the fictional duty to read on the one hand, and the reality of cognitive limitations and the objective theory of contracts on the other.