期刊名称：Michigan Telecommunications and Technology Law Review
印刷版ISSN：1528-8625
出版年度：2001
卷号：7
期号：1
页码：1-95
出版社：University of Michigan Law School
摘要：No scholarly commentator has suggested that the form contract rules provide a satisfactory answer to the commercial problem of performance risk. So, one might think that the dawn of the "information economy" would be a propitious time to implement a new doctrinal approach. Apparently not: the National Conference of Commissioners on Uniform State Laws (the "Conference") has promulgated a comprehensive commercial statute that fails to remedy or even modify the law of form contracts in purely commercial transactions. The Uniform Computer Information Transactions Act ("UCITA")--drafted to provide the background law for many of the most significant transactions in the information age--simply accepts as holy writ "the duty to read" tradition that has been handed down by our forefathers. Specifically, § 113 of UCITA provides that the Act's default rules can be varied by agreement and §§ 112 and 208 provide that manifested assent to a standard form (by, for example, use of the product) constitutes assent to each term of that form. The Conference proclaims that the Act is "a statute for our time;" setting "forth uniform legal principles applicable to computer information transactions. This article considers whether the several States should adopt the Act as drafted, when it continues a fiction that condones economic inefficiency and unfair resolution of disputes. Concluding that UCITA cannot profess to be "a coherent contract law framework for analyzing a license ... the dominant contractual framework for commerce in computer information" without a more uniform treatment of performance problems in form transactions, I propose an alternative treatment based on efficient risk management principles.[...] This Article is limited to UCITA's treatment of performance problems in the context of form contracts used in transactions between commercial (i.e. non-consumer) parties. Part II will describe the scholarship regarding form contracts in particular-scholarship that apparently has been rejected or ignored by the Conference. Part II also analyzes whether shrinkwraps and clickwraps, as prototypical UCITA contracts, present any particular basis for rejecting scholarly analysis. Part III examines in detail the most relevant provisions of UCITA and the Official Comments supporting those provisions. True to its word, UCITA's formalistic freedom of contract approach would enforce standardized contractual terms regarding performance obligations and remedies, despite any empirical basis for finding a meeting of the minds or any persuasive demonstration that presumed assent is consistent with public norms. Part IV explains an approach that focuses on risk bearing and spreading and demonstrates why
