A Comment on ‘An Ex-Ante View of the Battle of the Forms: Inducing Parties to Draft Reasonable Terms’ by Omri Ben-Shahar

Abstract

This paper comments on Omri Ben Shahar's article “ An Ex-Ante View of the Battle of the Forms: Inducing Parties to Draft Reasonable Terms.” In that article, the author focuses on one type of ex ante effect of the battle of the forms: the incentive to draft reasonable boilerplate terms. He argues that the experience with the battle-of-the-forms rule under the CISG reinforces what we already know, that existing legal solutions do not provide any incentive for the parties to draft reasonable forms. He also suggests that the goal of inducing parties to draft reasonable terms can be significantly promoted by a third rule, a variant of the “best-shot” rule proposed by Victor Goldberg. Under this version, labeled the “reasonable-shot” rule, the court would resolve the battle of the forms by choosing the form that contains the more efficient terms. In this paper, I argue that Omri Ben-Shahar's thesis, while extremely interesting and provocative, may overlook other aspects of this complex problem. In particular, I suggest that the implementation of the proposed normative approach would not necessarily lead to the desired effects, and it may also significantly increase the level of transaction costs.