The incorporation of terms into commercial contracts: A reassessment in the digital age

Abstract

Contractual terms define the parties’ rights and liabilities in contracts. In commercial contracts, terms and conditions should be constructed in a way that clearly reflects on the contracting parties’ intention after contract negotiations. A poorly drafted contract often increases the risk of misunderstanding, which may lead to payment and performance delays and other disputes. In consumer contracts, additional consideration may be required in order to incorporate terms validly, fairly and reasonably, because most consumers do not understand their baseline legal rights even if the terms are written clearly. Moreover, as raised in the old-fashioned ticket cases, "[n]o customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the train or the boat".