Form Contract

Abstract

In light of the tendency to view contract through a lens of free will and agreement, this chapter approaches contract from the vantage point of standard form agreements. Drawing on empirical studies, behavioral psychology, law and economics contract scholarship, critical legal studies, legal history, and literary theory, it counters the prevailing view of standard terms as the exceptional case of contract. Through the lens of deconstruction, the chapter highlights the contextual contingency of standard form and refracts the presumptions in society and law concerning the allocation of resources. It identifies how the contemporary proliferation and routine enforcement of ancillary terms such as arbitration provisions in the current day epitomize how contract serves as a tool to leverage power. Examining form-contract scholarship and case law, the chapter reveals the expressive possibility of standard form in American law. It shows how the phenomenon of boilerplate exemplifies the process by which contract language serves to manifest agreement, shaping an understanding of freedom. The chapter extends the insights of legal history concerning the limits of contract freedom in the nineteenth century. In doing so, it draws on American literature to illustrate a changing paradigm of freedom—from wage labor to real estate development to consumption—and the attendant allocation of resources that shape voluntary exchange. By virtue of boilerplate’s contextual contingency, this deconstructive perspective reveals the potential to redistribute resources through standard form contract, and thereby not only create value but shape social norms.