Toward A Comprehensive Theory of Standard Form Contract Law: A Synthesis of the Best from Germany and America

The theory of this paper is simple: the law has to deal with 20th Century real contracts instead of blindly applying 19th Century classical “bargained for” contract law. Not to face the reality of the modern “unbargained for” adhesion contract disappoints the justified expectations of both parties, that is, the one drafting standard form terms and the one submitting to them. The subject of standard contract forms is appropriate for a comparative analysis between German and American contracts law

A New and Old Theory for Adjudicating Standardized Contracts

The purpose of this article is rather simple, extracting a new theory of standard form contracts from the good bits of the spectrum of old ideas and combining them with some fresh rethinking. For something fresh, the authors choose to examine the German law on standard form contracts. The authors have tried to remain neutral observers but in extracting the best from the spectrum of ideas one necessarily states--in this instance, one of pragmatic compromise. Thus, this article will cull and identify elements from the spectrum specifically concerning standard form contracts and compare them with the German approach. This process is undertaken with a perspicuous and pragmatic eye to formulating a new systematic, comprehensive theory of standard form contracts. Section One of this article commences with some basic assumptions or premises which underlie the subsequent analyses. These assumptions clarify and restrict the scope of this study. For example, no inquiry is made into the existence and importance of standard form contracts or whether they are different from bargained-for contracts. Neither does this article address any need for a different legal treatment of standard form terms. The question is not if there should be a different body of rules for standard form terms, but how the rules should differ. The second and third sections, on German and American law respectively, provide the requisite information from which to draw conclusions concerning the possible development of a new American theory. The fourth section culls and describes these conclusions