San Diego Law Review

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A rolling contract is a deal in which the contract either is not formed until, or is modified when, the last terms are presented for assent. The issue raised by rolling contracts is whether the seller's additional standard terms are enforceable. This article criticizes two distinct approached advanced by advocates of the rolling contract concept. Judge Easterbrook's approach is based upon principles of contract formation. This essay shows that his analysis is replete with distortion and avoidance of the relevant contract principles. Professor Robert Hillman focuses on the contract terms, arguing that, irrespective of faulty analysis concerning contract formation, the terms included in the box should nevertheless be part of the contract between the parties. This essay challenges his doctrinal bases to support inclusion of the terms in the contract and argues, in addition, that inclusion of the terms represents an inappropriate normative choice.

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