Document Type

Article

Publication Date

2006

First Page

137

Volume

40

Source Publication Abbreviation

Loy. L.A. L. Rev.

Abstract

This article considers the system of unilateral private ordering by form contracts: the presumptions of a free market and free bargaining. It questions whether the system of constrained judicial oversight that serves to insulate bargaining from governmental control should extend to standardized consumer contracts that emphatically dispense with bilateral ordering. It also questions whether the unilateral private ordering presented by standardized contracts effects a cost savings for society, a construct with apparently universal acceptance today. This article considers the application of Article 2A to standard form contracts in the most common consumer leasing transaction -- renting a car.

Part II discusses the importance of default rules and presumptions in the law and focuses on contract law as an example. Part III examines rental care agreements and provisions of Article 2A that apply to consumer leasing. Part IV discusses the treatment of form contracts by the common law and the UCC.

Part V explores the doctrine of unconscionability as it applies to form contracting. Part VI examines the historical basis for a lenient standard for contract formation and questions whether extension of the lenient or "hands-off" approach is justified for standardized contracts that amount to unilateral private ordering. Part VII concludes that form contracts for the lease of goods give substantial leeway to lessors, which strengthens the economic power of corporate entities without a corollary social benefit.

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