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Abstract

The Restatement of the Law Consumer Contracts project has proved to be controversial. The current published draft of the Restatement diminishes the role of assent as a fundamental element to determine the content of an agreement, limiting its influence to the "core deal terms" and accepting that proper notice and reasonable opportunity to review proposed standard terms (pre or post transaction) is enough to adopt them as part of the contract. This has been questioned from empirical and normative perspectives, being qualified as detrimental to consumers' rights. In fact, the draft proposal actually incurs in the same defect that it is trying to solve: if it is not plausible to expect that consumers read and take informed account of the contracts' provisions (and to expect a meaningful assent), it is difficult to see how proper notice and reasonable opportunity to review standard terms pre or post transaction would provide better protection to consumers. However, the critique does not solve the problem. Meaningful assent is a chimera and unconscionability by itself is not a powerful enough remedy, because ex post enforcement face severe limitations.

The draft proposal provides a stark contrast with the state of consumer protection law in civil law countries' In the latter, though assent is still essential to enter into a contract, there have been several regulatory efforts to address the problems caused by the massive and anonymous character of consumer contracts, from ex ante regulation to attempts to improve the fairness control of standard terms. As I will argue, a regulatory approach that abandon the limitations of contract law doctrines, such as assent and business' autonomy to design the terms and conditions of consumer contracts seems to be better suited to address a form of relationship that does not conform to the basic structure of a private law contract.

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