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

Abstract

Analyzing a difficult subject that “pervades” contract law and which is “vital” to the national economy, scholars have produced scores of articles about the legal and societal aspects of boilerplate contract terms With their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin join the conversation. The authors’ bold position is that notwithstanding its physical presence in the document (or on a computer screen) boilerplate without actual agreement lacks contractual force. The authors claim that this widespread use of pseudo-contracts and their “fake terms” have invited “burgeoning forms of [consumer] deception.” To Kar and Radin, the prevalence of boilerplate has so undermined mutual assent that it has jeopardized the legitimacy of contract itself. I respectfully suggest that Kar and Radin’s article is doctrinally and normatively flawed. Most notably, the authors’ construct is at odds with the essential precepts of contract including the objective standard of contract, freedom of contract, and the duty to read and understand a contract. The likely practical ramifications of this empirically untested proposal designed to delete numerous contract terms would be the roiling of markets and precluding buyers and sellers from maintaining confidence in their agreements. The unintended consequence of Kar and Radin’s sea change would be to undermine the two goals of contract, which are (a) enforcing the contract accepted by the parties and (b) ensuring the stability, certainty, and predictability of contract. For all these reasons, I recommend that courts and legislatures reject shared meaning analysis. The current system provides more effective measures in safeguarding private ordering.