Vol 7 No 1 - Roger Williams University School of Law

lauded by some as a step forward for consumer protection, theobjectors note that the right of return is of questionable value: theright of return can be easily obviated by the licensor who makesthe information available ahead of time by posting it on thewebsite,84 thus ignoring the fact that the terms are non-negotiableand unread; the right does not apply if the new terms areconstrued as proposed modification of terms;85 and most users orlicensees never read the terms in the license anyway. Even if theyread the term, the term at the time of acquisition may not seemsufficiently important to merit a return; the costs invested in dealto date may be great; and transaction costs (time, aggravation,replacement) are not covered.Again, these types of provisions must be examined againstinternational concepts of appropriate policing tools, where theconcept of policing against unfairness is seen as a business issueas much as a consumer issue.86 The most relevant provision laidout in the UNIDROIT Principles of International CommercialContracts allows a court to set aside a term in a standard form ifit is “of such a character that the other party could not reasonablyhave expected it . . . .”87 Ironically, this formulation, which theUNIDROIT Principles apply to commercial contracts, was rejectedby the UCITA drafting committee as too liberal, even in theconsumer context. Other international documents give additionalpowers to courts to police transactions in the consumer context,return if he or she rejects the term). This concept is further elaborated in the case ofmass market licenses in UCITA section 209.84. UCITA §§ 112, 212 (if there is pre-transaction disclosures of contract terms inInternet transactions where the contract is formed online for an electronic delivery ofinformation then an opportunity to review is deemed given).85. Id. § 112.86. See Michael J. Bonell, An International Restatement of Contract Law: TheUNIDROIT Principles of International Commercial Contracts 90 (Rome, 1994).An optimistic assumption that long prevailed at both domestic andinternational level was that contracts between merchants are concluded onlyby experienced and competent professionals in acting in accordance withwell-established principles of fair dealing . . . . This assumption isincreasingly being questioned . . . the UNIDROIT Principles move from amore realistic evaluation of international commercial bargains and provide avariety of means for ‘policing’ the contract or its terms against bothprocedural and substantive unfairness.Id.87. UNIDROIT Principles of International Commercial Contracts (1994), art.2.20(1), available at http://www.unidroit.org/english/principles/pr-main.htm.