Contracts Commons^™

Flipping The Script: Contra Proferentem And Standard Form Contracts, David Horton

University of Colorado Law Review

Virtually all modern contracts are standard forms. Although courts have long interpreted ambiguities in such agreements strictly against the drafter, they have struggled to explain why they do so. Under sustained academic fire, states are beginning to abandon the strict against-the-drafter doctrine. Recent cases have even refused to certify class actions on the grounds that a corporate defendant's nonnegotiated, unilaterally-dictated contract is ambiguous and thus cannot be construed without individualized extrinsic evidence. This Article claims that the rejection of the strict against-the-drafter rule stems from confusion about its normative foundation. Judges and commentators have offered three rationales for the doctrine: …