Tuesday Tips for the Week of February 23, 2026
Ulrich Bindseil & Mitu Gulati
Ulrick Bindseil
Mitu Gulati
Abstract
Once a famous tale of conquest, law and foreign bond markets, the saga of the Silesian Bonds of 1734-37 is missing from the literature on sovereign debt. The Silesian Bonds were among the earliest foreign currency sovereign bonds issued. They go into the market 84 years prior to the 1818 Prussian issue by the Rothschilds often described as the first Eurobond. The bonds were issued by Charles VI, Holy Roman Emperor of the House of Habsburg, to investors in London and Amsterdam. They were tradable, denominated in foreign currency, and secured by a pledge of revenues from the estates of Silesia. Although bondholders seemed well-protected by a variety of covenants promising that the sovereign would refrain from raising defenses, there was reluctance to pay, delay, and ultimately partial repudiation. The story we tell centers around what happened to the debts after Frederick II of Prussia seized much of Silesia in 1740-42, agreed in the 1742 Peace of Berlin to take over from Austria the liability of the Silesian bonds, but then decided that he did not wish to pay. From the story, we draw clues about the state of international law, contracting practices, and the operation of the sovereign debt market in the mid 18th and early 19th centuries in Europe.
Andrea J. Boyack
Abstract
Company-crafted terms and conditions that supposedly govern modern consumer transactions are more lengthy, complex, and ubiquitous than ever before. Proliferation of online terms has been accompanied by increased judicial willingness to deem a contract duly formed based on passive and unknowing indicia of assent. Today’s consumer contracts are presumptively synonymous with a company’s online terms and conditions. Based on this framework, individuals cannot buy, join, stream, use, or access a myriad of goods and services unless they acquiesce to being legally bound to company-controlled terms.
Today’s “boilerplate terms” are electronic rather than printed, and this means that increasing their length, number, and complexity is costless. Contract formation outside of the digital sphere usually requires more time, more party engagement, and more active indicia of assent. But online contracting reduces transactional friction. The online context of today’s contracting rewards transactions that are streamlined and sped up. The fewer clicks and more auto-fill content, the less time to reconsider prior to commitment, and the greater volume of transactions – and a company’s profit. In cyberspace, people do not bother to find and read proffered terms, let alone attempt to negotiate them.
Consumers are therefore subject in contract law to lengthy and changeable digital terms authored and controlled exclusively by the companies with which the interact. If no one pauses to peruse a company’s standard terms, no one notices whether they include waivers of legal rights, and no one notices when those terms become longer, more restrictive, and more unfair. The length and complexity of terms disincentivizes even prudent consumers from examining them. No economic, market, legal, or reputational constraint limits the length – and, to some extent, content – of terms that are presented via hyperlink.
Not only are today’s standard contracts more extensive; they also impact people’s lives more extensively. The ubiquity of modern consumer contracts reflects technological and market developments, for example, the huge growth of e-commerce. Recent business model shifts from acquisition to access has led to a proliferation of licensing terms. People rely on subscriptions to be entertained, informed, in contact, and involved in various networks. Online terms and conditions now establish private rules that purport to govern everything from riding an electric bike to listening to a hit song. Because, increasingly, software and other services come bundled with various tangible goods, even in-person purchases of goods may subject a buyer to a company’s standard terms. Companies have embraced the potential advantages that come from unchecked power over applicable private law and carefully construct custom-designed legal frameworks and strategically channel their consumer counterparties into the relationships that are, allegedly, governed thereby.
Most courts today presume that a company’s standard terms make up the content of the parties’ contract. These terms are thus legally enforceable unless a court finds them so unfair and so shocking as to require judicial excision. But company-controlled content is not the equivalent of mutually chosen terms and treating them as such strains the theoretical underpinnings of contract law and raises concerns regarding abusive waivers of consumer rights.
Part I of this chapter briefly traces how modern contract law’s treatment of non-negotiable standard terms evolved from early skepticism regarding contracts of adhesion to the liberal formation approach taken by the 2022 American Law Institute’s Restatement of the Law of Consumer Contracts. Part II discusses the mismatch between contract theory and consumer contracting reality and articulates law and policy concerns associated with common types of boilerplate waivers. Current tensions regarding digital contract enforceability and emerging issues in law and technology related online contracting are discussed in Part III.
Emily Stolzenberg
When former cohabitants ask courts to distribute property at the end of a nonmarital relationship, they usually lose–even when the partners were as economically intertwined as spouses. Family law scholars have traditionally criticized these cases in terms of longstanding gendered ideas about family relationships. This Article proposes a complementary account at the intersection of feminist and private law theory: that the law of voluntary obligations is not adequately developed to protect intimates’ cooperation. Although marital status law aims to safeguard thick cooperation between spouses and contract law captures a range of more market-based cooperation, for historically contingent reasons, little doctrine has evolved to govern cohabitants’ cooperation. As a result, the current law of cohabitants frequently fails to further important purposes of private law writ large, including facilitating joint projects, providing redress for harm, and preventing exploitation.
Scholars and legal decision-makers should develop private law doctrine commensurate with the understanding that less market-based cooperation is commonplace and deserving of legal protection. This project would improve the resolution of disputes between all intimates: not just unmarried partners, but also other family members, friends, and those in relations of interdependence or trust. It also presents opportunities to build a more nuanced and complete private law and private law theory.
Nancy S. Kim
Consent and Dispute Resolution Clauses
Abstract
Dispute resolution provisions are routinely found in the boilerplate section of all types of contracts, ranging from negotiated paper agreements to website Terms of Service. The law permits the parties to a contract to change the default rules that would otherwise govern their transaction, including how any disputes will be resolved. The ability of the parties to change default rules demonstrates the deference of contract law to individual autonomy and private ordering. Consent is central and essential to both. Despite the legal significance of consent, its meaning is elusive. In one sense, the “meaning of consent” refers to its implications and the legal and moral consequences that derive from consent. In the other, and more complex sense, the “meaning of consent” refers to its very nature. Drawing upon my previous work on consent and contracts, this Article discusses these two meanings of consent and how they are interdependent. It will also examine consent specifically in the context of dispute resolution clauses.