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Author

Inchul Kim

Date of Award

8-2010

Author's School

School of Law

Degree Name

Doctor of Juridical Science (SJD)

Degree Type

Dissertation

Abstract

In this dissertation, after examining the history of the study of standard form contract, without surrendering the general contract theory, but with the change of the tendency of court decisions. I provide a new approach to protect consumer in consumer goods transaction with standard terms. First as most courts assert in the cases, formation of contract requires mutual assent based on objective evidence without considering the hidden intent of the parties. Although, in consumer transactions, many courts find the manifestation of assent in the transaction of standard form contract with no action, and enforce the contract, because almost all consumers do not recognize the outward manifestation of assent, because reasonable sellers know most consumers only consider the price and subject matter in consumer goods transactions, because consumers do not read the standard terms which appear after payment of purchase price, as many scholars and some courts have recognized, it is a legal fiction that consumers assent to all standard terms when they use consumer goods after purchasing them goods in a retail shop. After considering these situations, courts should separately analyze consumers' assent to standard terms, actual knowing assent to the particular terms which limits consumers' rights or privileges or impose new duties on consumers, and constructive assent to the formation of contract. A contract might be formed with a finding of constructive assent, because this constructive assent is necessary to enforce a socially beneficial contract. However, blanket assent to some onerous terms undermine the fundamental principle of "individual autonomy." Therefore, incorporation of particular terms should be considered in their effect. If the effect of a particular term is to impose any obligation on the licensee or to limit the right or privileges of the licensee, the court should require actual knowing assent to those terms. It requires conspicuousness of terms that were not bargained for, and the importance of the terms should be explained so that consumers may understand the significance of them. The advantage of two separated assents is that the UCC is the default rule, gap filler that will help to understand and form a contract.

Chair and Committee

John Owen Haley, Supervising Professor; Charles R. McManis, Examining Professor; Michael M. Greenfield, Examining Professor.

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