Contractual Symmetry: A Doctrinal and Economic Analysis

Abstract

When discussing the fairness of boilerplate consumer contracts, courts often rely on the criterion of symmetry: whether a given contractual provision applies equally to both parties. In many states, boilerplate provisions that apply solely to the consumer but not to the merchant are much more likely to be judged unconscionable than provisions creating identical obligations for both parties. However, this approach is misguided. Relying on game theory, this Article demonstrates that the symmetry criterion is unlikely to promote fair or efficient contracts.