20th January 2013
Ms. Radin begins by arguing that boilerplate contracts—which as early as 1919 were widespread enough of a commercial practice as to be a subject of case law—aren’t really contracts at all. Because the terms aren’t bargained over, it follows that they aren’t consented to in any traditional sense; there is no meeting of the minds between the parties.
The absence of real agreement means that boilerplate contracts are inconsistent with the moral basis of contract law, which, after all, uses the power of the state to enforce the transfer of one person’s property to another on the ground that both agreed to the transfer. This degradation of the moral basis of contract law, in turn, undermines the classical liberal justification for the state, which rests on the need for a public entity that enhances freedom by enforcing private agreements.