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Full-Text Articles in Law and Economics
Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner
Turned On Its Head?: Norms, Freedom, And Acceptable Terms In Internet Contracting, Richard Warner
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Is the Internet turning contract law on its head? Many commentators contend it is. Precisely this issue arises in current controversies over end user license agreements (EULAs) and Terms of Use agreements (TOUs, the agreements governing our use of web sites). Commentators complain that, in both cases, the formation process unduly restricts buyers’ freedom; and, that sellers and web site owners exploit the process to impose terms that deprive consumers of important intellectual property and privacy rights. The courts ignore the criticisms and routinely enforce EULAs and TOUs. There is truth on both sides of this court/commentator divide. EULAs and …
The Accidental Promise: Remaking The Law Of Misrepresented Intent, Aditi Bagchi
The Accidental Promise: Remaking The Law Of Misrepresented Intent, Aditi Bagchi
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Insincere Promises advances an economic theory of promissory fraud. Ayres and Klass argue that the doctrine of promissory fraud helps to induce efficient reliance from promisees by penalizing promisors who misrepresent the objective probability of their performance. The authors propose a revised doctrine aimed at inducing optimal reliance with minimal transaction costs. I show that Ayres and Klass have all but abandoned the role of intent in the common law of misrepresented intent. Ayres and Klass are concerned only with making available to promisees accurate information about the probability of performance by promisors. I suggest that whatever the merits of …