Consenting to Form Contracts

In this essay, I will identify one theoretical source of the common antipathy towards form contracts and why it is misguided. I contend that the hostility towards form contracts stems in important part from an implicit adoption of a promise-based conception of contractual obligation. I shall maintain that, when one adopts (a) a consent theory of contract based not on promise but on the manifested intention to be legally bound and (b) a properly objective interpretation of this consent, form contracts can be seen as entirely legitimate-though some form terms may properly be subject to judicial scrutiny that would be inappropriate with nonform agreements. In this regard, I shall endorse the much-maligned approach of the United States Supreme Court in its decision in Carnival Cruise Lines v. Shute.' With this account of form contracts in mind we can better appreciate the wisdom of that other maligned contracts case: Hill v. Gateway 2000, Inc.