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Official Blog of the AALS Section on Contracts

Relationship as Product – Guest Post by Shmuel I. Becher & Sarah Dadush

July 21, 2020

Today we have a guest post from Shmuel I. Becher and Sarah Dadush based on their article, Relationship as Product:  Transacting in the Age of Loneliness.

One interesting way to look at human relationships is to distinguish between social/communal norms on the one hand, and market/exchange norms, on the other. For instance, if a friend invites you over for dinner, you will probably express your gratitude by giving them a kiss or a hug. You would not offer them payment in exchange for their “service” of having you over. At the same time, if you have dinner at a restaurant, you will expect to pay for your meal, and you will not expect to hug the waitress or to kiss (or be kissed by) the chef. There’s a business sphere and a social sphere. These spheres should be kept distinct, if not separate.  

When businesses contract with consumers, they operate in the market/exchange sphere. But what happens when businesses deliberately blur this reality? More and more businesses are marketing their products and services emotionally, addressing consumers as one would approach a friend, lover, family member or caring community member.

Consider the following real-world illustrations:

  • A company sends an e-mail titled “A Love Note from Everyday Oil,” greeting its customers with “Hello to this beautiful community of people we love!” and ending its message with “xoxo, Emma”.
  • A telecom company greets a customer returning from a trip overseas with an unsolicited text message, simply saying “Welcome home! We hope you had a safe trip.”
  • A petrol company e-mails a customer, congratulating him on being “a great customer” and informing him that “we thought we’d return the favor” by offering a few cents discount on fuel.
  • An investing banking company emails a client, saying “Friendly note: [Name of client,] We want to reward you with up to $500 offer.”
  • After unsubscribing from an email list, a window pops up, saying “Is this goodbye?….We still think you’re awesome though so don’t be a stranger”.
  • An airline texts a traveler saying “In case you missed tomorrow’s local weather memo for… it’s going to rain … and quite a lot we hear. This could easily put a damper on your travel plans. Wear your galoshes, remember your umbrella….”
  • A hotel chain promises its club members “Whenever you travel, we are waiting with open doors and open hearts to serve you.”

Many businesses are using emotional or love promises when communicating with consumers. Some consumers – perhaps even some readers of this blog – may brush off such promises and friendly communications as harmless. Aren’t these emails and texts just cute and innocent gestures that make our lives more pleasant and fun? As we explain in our article (Relationship as Product: Transacting in the Age of Loveliness), often the answer is “absolutely no”.

Humans need relationships to flourish. Relationships are crucial to our wellbeing (as Covid-19 is brutally reminding us). At the same time, Americans suffer from a loneliness epidemic (recall Bowling Alone, and see also here). This creates fertile ground for firms to pretend to be in communal relationship with us.

Indeed, firms are selling relationship as if it were a product, manipulating people into believing that individuals can form deep, meaningful and emotionally satisfying relationships with firms. The examples above are just a few mundane illustrations. Alas, firms are using these kinds of manipulations in other, more serious, contexts.

For example, online payday lenders frequently frame their messages around an offer to “help.” “‘We Help’ is our simple mantra”, “Call us on 1300 WE HELP”, “know that you’ll be welcomed at [payday lender] and treated with the same respect and care that we would a dear friend in need” are just a few examples. Lenders also use social media platforms to post content depicting their firm as fun, helpful, and always available—the virtues of a human friend. Individuals will find this content intermingled on their feeds with posts from family and friends.

Another example is real estate agencies. The real estate market involves complicated transactions that are stressful and risky. This provides the perfect setting for a real estate company to claim to be the client’s “protector,” promising to stand by them “every step of the way.” In a specific ad we came across, a woman of color was being embraced by a white man and “watched over” by a white woman (the realtor). Overall, the ad implies that the (female, non-white) client will be shielded and guided by the firm as she carries out her real estate transaction.

The loneliness epidemic can cause people to crave deep relationships. Firms realize that and frame their communications with consumers accordingly. In so doing, businesses lead consumers to believe, or at least imagine, that their (commercial/exchange) relationship with a firm can somehow fulfill their (communal/social) relationship craving. But firms are not people, and they are not capable of love or true friendship. As the New York Times cautions its readers, “Sorry, but your favorite company can’t be your friend”.

By luring consumers to believe they can form deep and intimate relationships with firms, consumers are led to lower their guards, to be forgiving of firms that misstep, and to behave in a less self-interested, more firm-regarding way. The emotional marketing literature suggests that firms that succeed in securing emotionally committed customers generate higher returns. This makes sense. Emotionally invested consumers will continue “purchasing even when there are good reasons to switch. This is a loyalty that will lead someone to keep their accounts with Wells Fargo despite it repeatedly getting fined, to get the new Samsung Galaxy even after the 7 was recalled, or to buy a VW in the face of the emissions test scandal” (see here).

Business-to-consumer contracts should reflect market norms and exchange relationships. Strategies that market and sell these exchanges as if they were social and intimate relationships are manipulative. Such strategies harm not only consumers, but honest competitors and society at large. The article thus offers avenues for addressing the relationship as product phenomenon legally. In particular, it suggests rethinking the puffery doctrine and exploring the possibilities for treating such marketing and selling techniques as deceptive or unfair trade practices.

This guest blog post is based on Shmuel I. Becher & Sarah Dadush, Relationship as Product: Transacting in the Age of Loneliness.

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