Skip to main content Accessibility help
×
Hostname: page-component-84b7d79bbc-dwq4g Total loading time: 0 Render date: 2024-07-27T21:04:41.856Z Has data issue: false hasContentIssue false

2 - Cooperative Negotiations in the Shadow of Boilerplate

Published online by Cambridge University Press:  02 December 2009

Jason Scott Johnston
Affiliation:
Robert G. Fuller, Jr., Professor of Law and Director, Program on Law, the Environment, and Economics, University of Pennsylvania Law School
Omri Ben-Shahar
Affiliation:
University of Michigan, Ann Arbor
Get access

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
Boilerplate
The Foundation of Market Contracts
, pp. 12 - 28
Publisher: Cambridge University Press
Print publication year: 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×