INTRODUCTION

Undoubtedly, default rules constitute one of the most characteristic regulatory instruments of contract law, and encapsulate its most crucial concepts concerning the relation between a legal rule and an individual. Under the conventional assumption, default rules are intended to facilitate contracting by providing parties with a choice of pre-set alternatives for the content of an agreement. Current markets, however, alter this general picture to a certain extent. Instead of a general and universal community of contractors, they develop parallel close-knit communities, which are typically brought together through the use of IT tools in order to facilitate contracting amongst their members. They give rise to more constrained and tighter regulatory communities, which develop more specific sub-majorities of preferences. Many of these communities set forth various self-regulatory frameworks, which attempt – at least to a certain extent – to respond to these preferences. Amongst the diverse types of rules that result, there are an increasing number of optional rules, which in many respects resemble classic default rules in contract law. As opposed to the more classic defaults, however, the default rules generated by these private regulators are created for closer regulatory communities about which these private regulators have much more information. They therefore address and reflect the ‘fractioned’ majorities’ preferences.

Although similar occurrences have also been recognised in classic market settings, the clusters of contractors created currently in electronic commerce seem particularly exemplary for this phenomenon and – at the same time – in many respects specific in terms of identifying and aggregating preferences of individuals. Therefore, the main point of reference for the text are rules developed by online intermediary platforms in the sharing economy – which seem to embody many of the peculiarities of fractioned majorities. From this perspective, the matter of fractioned majoritarian defaults merits and necessitates a more comprehensive theoretical account on at least two levels. A more detailed analysis is required regarding its exact nature and variations, in respect of current market phenomena. A deepened analysis is also required in terms of its relation with the existing body of contract law rules – both in terms of legislation, and in terms of pertinent case law.