Unfair terms in comparative perspective: Software contracts

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

The phenomenon of unfair terms in mass-market contracts is widely acknowledged, as is the fictional nature of “assent” or “consent” to all but a few obvious terms, such as price and key product features. Although some still argue for facilitating choice through better disclosure and education of customers, most policymakers, regulators, and scholars concede that there often can be no real assent to mass-market standard terms, but then balk at meaningful solutions to address market failure. The problem of nasty standard terms is seen as intractable. A good example of recognition of the problem of unfair terms but reluctance to provide effective remedies is the recent project of the American Law Institute - the Principles of the Law of Software Contracts. The Principles address every issue raised by the coalition of software customers concerning unfair terms and practices, but they rely too heavily on after-the-fact judicial policing using broad standards and do not call for administrative prevention or enforcement. The Principles thus are mostly symbolic, although in several places they propose meaningful commands and in others they use illustrations to target specific suspect terms. Overall, they suggest some important ways to make software contracts fairer and succeed in making the point that policing of terms is more tractable if done industry by industry, with attention to particularities, but they stop short of a workable implementation strategy.

Original languageEnglish (US)
Title of host publicationCommercial Contract Law
Subtitle of host publicationTransatlantic Perspectives
PublisherCambridge University Press
Pages339-365
Number of pages27
ISBN (Electronic)9781139235662
ISBN (Print)9781107028081
DOIs
StatePublished - Jan 1 2010

ASJC Scopus subject areas

  • Social Sciences(all)

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    Braucher, J. (2010). Unfair terms in comparative perspective: Software contracts. In Commercial Contract Law: Transatlantic Perspectives (pp. 339-365). Cambridge University Press. https://doi.org/10.1017/CBO9781139235662.020