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Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Wayne R. Barnes
Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Wayne R. Barnes
Standard form contracts permeate our very existence, and now even include contracts we assent to online by way of "clickwrap" and "browsewrap" methods. Notwithstanding the ever-increasing presence and complexity of such standard form contracts, both offline and online, the law of contracts in this area has remained fairly static since before the nineteenth century. The only meaningful salve to the problem of misinformed assent to onerous clauses in standard form contracts thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to …
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Wayne R. Barnes
No abstract provided.
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
Wayne R. Barnes
The survey that follows highlights the most important developments of 2014 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions in these areas, which are highlighted in the survey, there has also been important legislative progress. The 2010 amendments to U.C.C. Article 9 have been adopted in forty-nine states, the District of Columbia, and Puerto Rico, and introduced in Oklahoma. Those revisions were summarized in the Introduction to the 2009 survey. Additionally, the 2012 amendments to U.C.C. …
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
Wayne R. Barnes
The survey that follows highlights the most important developments of 2016 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions highlighted in the survey, there has also been legislative progress in several areas. The 2012 amendments to U.C.C. Article 4A, which address issues related to the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, have been adopted by forty-six states and the District of Columbia, and introduced in Connecticut and Oklahoma. In …
Social Media And The Rise In Consumer Bargaining Power, Wayne R. Barnes
Social Media And The Rise In Consumer Bargaining Power, Wayne R. Barnes
Wayne R. Barnes
Consumers are constantly entering into form contracts, both offline and online. They do not read most of the terms, but the duty to read says the contracts are nevertheless fully enforceable. Moreover, consumers lack any real bargaining power when assenting to such contracts with merchants. Not only that, but if the products malfunctions, or they are somehow damaged by it, they will likely face the prospect of being limited in their available remedies because of boilerplate terms which are favorable to the merchant. In the “old days,” the consumer had no real recourse but to call a 1-800 number, and …
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes
Wayne R. Barnes
The survey that follows highlights the most important developments of 2015 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions. Along with the usual descriptions of interesting judicial decisions in these areas, which are highlighted in the survey, there has also been important legislative progress. The 2010 amendments to U.C.C. Article 9 have been adopted in all fifty states, the District of Columbia, and Puerto Rico. Those revisions were summarized in the Introduction to the 2009 survey. Additionally, the 2012 amendments to U.C.C. Article 4A, which …
Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes
Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes
Wayne R. Barnes
The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had …
Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes
Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes
Wayne R. Barnes
The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. However, they reflect a delicate juxtaposition of the two primary legal systems of the world --- the civil law and the common law. A consequence …
The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes
The French Subjective Theory Of Contract: Separating Rhetoric From Reality, Wayne Barnes
Wayne R. Barnes
Most of the world, including Anglo-American jurisdictions, conforms to the objective theory of contract, which posits that contract formation is determined by reference solely to external evidence of manifestations of assent. On the other hand, France uniquely clings to the rhetoric of its “subjective” theory of contract, championing the freedom of the individual and the autonomy of the will. France’s association with a subjective theory of contract is widely recognized and assumed. One would initially assume that the French subjectivist philosophy would result in dramatically different outcomes in actual cases, when compared with the objectivist rules-based perspective that obtains in …
The Objective Theory Of Contracts, Wayne Barnes
The Objective Theory Of Contracts, Wayne Barnes
Wayne R. Barnes
The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Wayne R. Barnes
The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Wayne R. Barnes
Standard form contract are ubiquitous, whether signed in the real world or clicked in the online world. Consumers are constantly entering into standard form contracts with the merchants they transact with in order to buy goods or services. Consumers, however, are usually aware of only the basic terms in the form like price, subject matter, and quantity. Consumers otherwise rarely read the form contracts that they sign. However, traditional contract law and the duty to read provide that the consumer is bound to all the terms contained in the form contract, both the known terms and the unread and unknown …
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Wayne R. Barnes
When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes
Wayne R. Barnes
Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes
Wayne R. Barnes
The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes
Wayne R. Barnes
When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …
Moderator: Performance & Enforcement Panel Discussion, Wayne Barnes
Moderator: Performance & Enforcement Panel Discussion, Wayne Barnes
Wayne R. Barnes
No abstract provided.
Presenter, Panel Discussion On Professor Nancy Kim’S New Book, “Wrap Contracts: Foundations And Ramifications”, Wayne Barnes
Presenter, Panel Discussion On Professor Nancy Kim’S New Book, “Wrap Contracts: Foundations And Ramifications”, Wayne Barnes
Wayne R. Barnes
No abstract provided.
Presenter: Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Presenter: Consumer Assent To Standard Form Contracts And The Voting Analogy, Wayne Barnes
Wayne R. Barnes
No abstract provided.
Presenter: Social Media And The Rise In Consumer Bargaining Power, Wayne Barnes
Presenter: Social Media And The Rise In Consumer Bargaining Power, Wayne Barnes
Wayne R. Barnes
No abstract provided.
Presenter: Social Media And The Rise In Consumer Bargaining Power, Wayne Barnes
Presenter: Social Media And The Rise In Consumer Bargaining Power, Wayne Barnes
Wayne R. Barnes
No abstract provided.