Book contents
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- 1 One-Sided Contracts in Competitive Consumer Markets
- 2 Cooperative Negotiations in the Shadow of Boilerplate
- 3 Boilerplate and Economic Power in Auto-Manufacturing Contracts
- 4 “Unfair” Dispute Resolution Clauses: Much Ado About Nothing?
- 5 The Unconventional Uses of Transaction Costs
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- PART FOUR COMMENTARY
- Notes
- Index
2 - Cooperative Negotiations in the Shadow of Boilerplate
Published online by Cambridge University Press: 02 December 2009
- Frontmatter
- Contents
- Preface
- List of Contributors
- PART ONE WHY IS BOILERPLATE ONE-SIDED?
- 1 One-Sided Contracts in Competitive Consumer Markets
- 2 Cooperative Negotiations in the Shadow of Boilerplate
- 3 Boilerplate and Economic Power in Auto-Manufacturing Contracts
- 4 “Unfair” Dispute Resolution Clauses: Much Ado About Nothing?
- 5 The Unconventional Uses of Transaction Costs
- PART TWO SHOULD BOILERPLATE BE REGULATED?
- PART THREE INTERPRETATION OF BOILERPLATE
- PART FOUR COMMENTARY
- Notes
- Index
Summary
Editor's Note:In this chapter, Jason Scott Johnston argues that one-side boilerplate serves as a baseline for performance-stage bargaining during which firms accord customers benefits beyond those required in the contract and forgive some of the customers' obligations that are unreasonable. Firms nevertheless include the boilerplate in order to have the legal right to differentiate between legitimate and opportunistic ex-post requests by customers. Johnston argues that the practice of granting ex post concessions reinforces the relationship more than if the same concession were drafted into the initial terms of the contract.
Among attorneys, judges, and legal academics, there is virtual consensus that the widespread use by business firms of standard-form contracts in their dealings with consumers has completely eliminated bargaining in consumer contracts. I believe that this perception is false, that rather than precluding bargaining and negotiation, standard-form contracts in fact facilitate bargaining and are a crucial instrument in the establishment and maintenance of cooperative relationships between firms and their customers. On this view, firms use clear and unconditional standard-form contract terms not because they will insist on those terms but because they have given their managerial employees the discretion to grant exceptions from the standard-form terms on a case-by-case basis. In practice, acting through its agents, a firm often will provide benefits to consumers who complain beyond those that its standard form obligates it to provide, and it will forgive consumer breach of standard-form terms.
- Type
- Chapter
- Information
- BoilerplateThe Foundation of Market Contracts, pp. 12 - 28Publisher: Cambridge University PressPrint publication year: 2007
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