24 July 2014

Standard Form Contracts and Servility: Why Contracts Scholars Should Care

In mid-July in a post here about some of the latest scholarship on standard-form contracts (including a piece by colleague Kenny Ching that you can download here), I asked a question: Why do contracts scholars work to find a reason to reduce the normative obligation of consumers below their own sense of moral obligation? In other words, many scholars seek ways to reduce the legal (if not moral) obligation arising from form contracts that consumers never read and that sellers know aren't read.

It turns out that empirical research shows generally that consumers believe they are morally obliged to perform (or give up virtually all rights to any remedy) according to the terms of the contract. So why do scholars care? It's not likely their opinions will influence consumers or courts.

It turns out that Nick Wolterstorff provides an answer. Long ago, in 2009 to be exact, I posted at great length on Wolterstorff's book, Justice: Rights and Wrongs. (Go here for a post with instructions on how to get to the wayback machine.) Almost all talk of wrongs deals with violations of rights. That's certainly the way lawyers usually think of wrongs.

But the concept of a wrong is more broadly located in the notion of disrespect of an-other's worth, and the other can be oneself. (Go here for more details from Wolterstorff.) If human beings have inherent worth (as I believe) or even if they have only bestowed worth (per Wolterstorff), then it follows that they can disrespect themselves. As example of what C.S. Lewis calls servility, Wolterstorff quotes at length from Thomas Hill, Jr.'s article, "Servility and Self-Respect" (download from JSTOR here) beginning  as follows: "Hill is imagining a servile black man whom he calls 'Uncle Tom':
He always steps aside for white men ... He displays the symbols of deference to whites, and of contempt toward blacks ... Imagine, too, that he is not playing a game. he is not the shrewdly prudent calculator who knows how to make the best of a bad lot ... He accepts without question the idea that, as a black, he is owed less than whites. ... The attitude which he displays is that what he values, aspires for, and can demand is of less importance than what whites value, aspire for, and can demand.
Hill's Americanized, race-based setting should not obscure his larger point: "a recipient of an action may have a mistaken view as to her worth." Others, then, who profit by a recipient's misapprehension of his or her worth also commit a wrong even though the recipient does not believe so.

If, as the Christian tradition asserts (see my article, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here)), human beings have non-instrumental worth, then it is certainly arguable that engaging in transactions with "fine print" the recipient never reads, and that the agent knows the recipient will not read, and which eliminates all or virtually all remedies, for more than the market price, is morally wrong. The recipient has been wronged even if, after the fact, when the remedy-eliminating terms are brought to her attention, she believes she is limited by them. Such servility misunderstands her worth and its (ab)use by the agent should not be passed off as merely the morality of the marketplace.

What, one may then ask, has this to do with the response of the law to such a state of affairs? The positive law may not, as such, address the problem and abuse of servility; they are neither crimes nor torts. This does not mean, however, that a judge need implement servility as a matter of private law. I'll leave to others whether the remedy is not to enforce such terms or simply to reconfigure the recipient's obligation as one to pay only the market price.

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