This Restatement project draws on the Restatement Second of Contracts, the Uniform Commercial Code, and on court opinions in cases involving disputes between businesses and consumers. The project does not cover all possible aspects of the law that may govern these disputes, but instead has a focus primarily on the rules that determine how terms are adopted and which processes a business can use to introduce and modify terms in the agreement.  This focus addresses issues and challenges peculiar to today’s environment of mass production and mass distribution of products and services, in which there are no negotiations, and when there is so much information that consumers may not even be aware of all terms.  Because of the benefits or reality of standard-form contracting, the courts have been reluctant to place special impediments to their enforcement.  At the same time, courts have set boundaries on permissible contracting because they are aware that in the absence of scrutiny, businesses may draft terms that undermine some of the value consumers reasonably expected.

The Restatement is organized as follows:

§ 1. Definitions and Scope
§ 2. Adoption of Standard Contract Terms
§ 3. Modification of Standard Contract Terms
§ 4. Discretionary Obligations
§ 5. Unconscionability
§ 6. Deception
§ 7. Affirmations and Promises Not Part of the Standard Contract Terms
§ 8. Integrated Agreements
§ 9. Effects of Derogation from Mandatory Rules

Consumer contracts present a fundamental challenge to the law of contracts, arising from the asymmetry in information, sophistication, and stakes between the parties to these contracts—the business and the consumers. On one side stands a well-informed and counseled business party, entering numerous identical transactions, with the tools and sophistication to understand and draft detailed legal terms and design practices that serve its commercial goals. On the other side stand consumers who are informed only about some aspects of the transaction, but rarely about the list of standard terms. These consumers enter the transaction solely for personal or household purposes, without any professional understanding of its legal contours. It is both irrational and infeasible for most consumers to keep up with the increasingly complex terms provided by businesses in the multitude of transactions, large and small, entered into daily.

…In dealing with this fundamental challenge of potential abuse in asymmetric contracting environments, consumer-contract law deploys several regulatory techniques, of which two have featured most prominently. The first technique is the doctrine of mutual assent—the rules that determine how terms are adopted and which processes a business can use to introduce and to modify terms in the agreement. The second technique is the use of mandatory restrictions over the substance of the deal—rules that limit the discretion of the business in drafting contract terms and set boundaries to permissible contracting.

— Excerpted from Reporters’ Introduction, within the Restatement


Oren Bar-Gill

Reporter, Restatement of the Law, Consumer Contracts

Oren Bar-Gill is the William J. Friedman and Alicia Townsend Friedman Professor of Law and Economics at Harvard Law.  His scholarship focuses on the law and economics of contracts and contracting.

Omri Ben-Shahar

Reporter, Restatement of the Law, Consumer Contracts

Omri Ben-Shahar is the Leo and Eileen Herzel Professor of Law and Kearney Director of the Coase-Sandor Institute for Law and Economics at University of Chicago Law School. He teaches contracts, sales, trademark law, insurance law, consumer law, e-commerce, food law, law and economics, and game theory and the law. He writes primarily in the fields of contract law and consumer protection.

Florencia Marotta-Wurgler

Reporter, Restatement of the Law, Consumer Contracts

Florencia Marotta-Wurgler is a professor of law at New York University School of Law and the director of NYU Law Abroad in Buenos Aires. Her teaching and research interests are contracts, consumer privacy, electronic commerce, and law and economics. Her published research has addressed various problems associated with standard form contracts online, such as the effectiveness of disclosure regimes, delayed presentation of terms, and whether people read the fine print.

January Council Meeting Updates

At its meeting in Philadelphia on January 18 and 19, the Council reviewed drafts for several projects, with the following outcomes: Consumer Contracts: The Council discussed § 1, Definitions and Scope, and § 2, Adoption of Standard Contract Terms, of Council Draft No....