This article was originally published in Volume 15, Issue 2 (Jun 2019) of European Review of Contract Law, Special Issue on the ALI Restatement on Consumer Contract Law from a European Perspective.
The draft of the American Law Institute’s Restatement of Consumer Contracts reflects the jurisdiction of the US courts on the ‘adoption’ (as the draft calls it) of standard contract terms into consumer contracts. This draft is of great value to European lawyers in understanding US developments, but it may also stimulate a reflection on the state and possible evolution of European legal systems. It turns out that in the United States, as in Europe, the law on the adoption of standard contract terms is still heavily influenced by cases from the pre-digital and paleo-digital era. This article explains the rules of the Restatement for the adoption of standard contract terms, tests their functionality, in particular using the example of websites, makes some drafting suggestions and puts forward a proposal for the further development of the law on the adoption of standard contract terms of websites. The adoption of standard contract terms governing the use of a website should not require that consumers receive a notice of the standard contract terms prior to entering that website. The requirements for the adoption of standard contract terms should be seen as mainly, if not only, having the purpose of pinpointing the wording of a contract for later reference if necessary.