You are here

Law and Economics Workshop

Law and Economics Workshop

January 23, 2012

Russell Korobkin (UCLA)

Case Lounge, Jerome Greene Hall, Room 701
4:20- 6:10pm
Topic: The Borat Problem in Contract Law: Fraud, Assent, and Standard Forms

Abstract: Two parties reach an oral agreement. The first then presents a standard form contract, which the second signs without reading, or without reading carefully. When the second party later objects that the first did not perform according to the oral representations, the first party points out that the signed document includes different terms or disclaims prior representations and promises. I call this all-too-common occurrence the “Borat problem,” after litigation over the 2006 movie of that name based on this fact pattern.

The Borat problem exists on the blurry border between tort and contract law. This article describes the doctrinal indeterminacy and the underlying normative problem of bilateral opportunism that has caused courts to respond to the problem in a variety of inconsistent and unsatisfying ways. It then makes the case that the costs of contracting can be minimized if parties who draft standard form contracts are required to obtain “specific assent” from their counterparts in order to contradict or disclaim prior representations, and non-drafting parties are required to satisfy a heightened evidentiary standard before being permitted to challenge the enforceability of standard form terms on the grounds of fraud or misrepresentation.

Follow Us Online



Join the Mailing List

Learn more about the program by subscribing to our email list.

Sign Up

Contact Us

The Richard Paul Richman Center for Business, Law, and Public Policy
Columbia Business School
Uris Hall, 2M1-i
3022 Broadway
New York, New York 10027
Phone: (212) 851-9506

In the Media

Read More Articles >

Featured Events

Dave Bozeman, SVP Catepillar Enterprise, on "U.S. Competitiveness in the Manufacturing Sector"
Video >

Analyzing Global Financial Stability: "Have we Tamed the Too Big To Fail Financial Institutions?"
More >