In their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin argued that, notwithstanding its physical presence in the document (or on a computer screen), boilerplate without actual agreement lacks contractual force.
The authors advocated the technique of shared meaning analysis as a solution to the challenges presented by boilerplate contracts. By referring to “shared meaning,” Kar and Radin proposed that courts enforce “[t]he meaning that parties produce and agree to during contract formation that is most consistent with the presupposition that both were using language cooperatively to form a contract.”
I recommend that courts and legislatures reject shared meaning analysis. The likely practical ramifications of this empirically untested proposal – which is designed to delete numerous boilerplate contract terms – would be the roiling of markets by precluding buyers and sellers from maintaining confidence in their agreements. The current system provides more effective measures to safeguard private ordering.
Steven W. Feldman,
Actual Agreement, Shared Meaning Analysis, and the Invalidation of Boilerplate: A Response to Professors Kar and Radin,
84 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol84/iss3/7