Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?
Can Utilitarian-Welfare (Economic) Theory Justify Boilerplate Deletion of Rights?
This chapter examines whether boilerplate rights deletion schemes can be justified by the “contract-as-product” theory. The contract-as-product theory attempts to sidestep the issue of consent by denying that a particular set of contracted terms is an individual transaction requiring consent in the traditional sense. According to this view, whatever adhesion terms accompany the purchase of a product should actually be conceived of as part of the product. The chapter considers how choice or consent by the recipient enters into the contract-as-product view, and how information asymmetry and heuristic biases render erroneous the assumption of economic rationality. It argues that contract-as-product theory cannot suffice to validate boilerplate in general, or even presumptively.
Keywords: boilerplate rights, contract-as-product theory, consent, contract, choice, information asymmetry, heuristic biases, economic rationality, boilerplate
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