Jason MacLean (Lakehead University – Bora Laskin Faculty of Law) has posted The Death of Contract, Redux: Boilerplate and the End of Interpretation (Forthcoming (December 2016) Canadian Business Law Journal) on SSRN. Here is the abstract:
This article examines the conceptual and practical problems posed by so-called boilerplate contracts (or standard form contracts, contracts of adhesion) through the lens of the Supreme Court of Canada’s recent jurisprudence on contract law. Specifically, can non-negotiable and one-sided boilerplate “contracts” satisfy, not only the standard requirements of contract formation, but also the court’s recognition of an organizing obligation of good faith and its inherently fact-sensitive approach to contractual interpretation? Through an analysis of two recent applications of the court’s new contract law jurisprudence, this article concludes that non-negotiable boilerplate contracts – which are more accurately termed “products” – cannot and should not be shoehorned into the existing categories of contract law. Consequently, contract law is dead yet again. Law reform is necessary.