Today, the first half of my review of Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law appears over at ContractsProf Blog. A few days ago, I posted the above liability waiver as a preview for Lounge readers of my thoughts on the book (click on image to enlarge and zoom from there). From today’s post at ContractsProf:
Peggy’s contention (to oversimplify, as is so frequently necessary in Blog World) is that we cannot infer from the widespread persistence of a particular boilerplate term that consumers have chosen it through their willingness to buy the product/service + boilerplate bundle at a given price. Instead, we must treat it as a case of potential market failure. So, what might lead to this market failure? . . .
If you’ve taken almost any type of organized tour or active vacation and bothered to read the liability waiver that you were almost certainly asked to sign, then you’ve seen an agreement similar to the one I’ve included at right limiting the tour company’s liability for their negligence involving pretty much everything from a bad hotel room to your death from falling into an active volcano. Such waivers are ubiquitous, varying only slightly in their particulars.
And I have signed one every year for over a decade. Why? Well, the simple answer is that I have no choice, given that I want to participate in organized adventure travel and all tour companies have a similar waiver. But that’s too easy. The real question, as Peggy acknowledges, is why, if this is a term that consumers value, a competing adventure tour company has not arisen to offer a similar tour experience without the offending boilerplate language, potentially at higher cost?
Read the whole thing here, and the second half will follow later today, as will responses from Peggy.