Can Autonomy Theory (Agreement, Consent) Justify Boilerplate Deletion of Rights?
Can Autonomy Theory (Agreement, Consent) Justify Boilerplate Deletion of Rights?
This chapter examines whether autonomy theory (agreement, consent) can justify boilerplate rights deletion schemes. It first considers strategies for assimilating World B to consent by focusing on the devolution of voluntary agreement. It then explains the difference between agreement and the notions of consent or assent before discussing the doctrine of “reasonable expectations” in insurance contracts as opposed to the notion of radical unexpectedness. It also looks at the objective theory of contract, arguing that it is not applicable to boilerplate. Furthermore, “browsewrap” and “rolling contracts” cannot be assumed to yield obligation by invoking the objective theory of contract because of the possibility of sheer ignorance. The chapter concludes by analyzing whether a firm is justified in its assertion that by clicking “I agree” the recipient actually is consenting to be bound to its terms.
Keywords: autonomy theory, boilerplate rights, consent, voluntary agreement, agreement, assent, reasonable expectations, radical unexpectedness, contract, boilerplate
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