ABSTRACT
The impact of the first technological disruption on contract law, as on tort law, is to provoke changes to the rules. The e-commerce Directive says nothing specifically about unfair terms in online consumer contracts. However, protective measures relating to offline transactions apply; and, if a term will pass muster in an offline contract, the implication is that it will also be treated as ‘not unfair’ in an online contract. Assuming that a community—whether the community at large or, say, a particular business community—sees in entrusting transactions to smart technologies, then regulatory-instrumentalists will view the governance of such transactions as an exercise in putting in place proportionate and acceptable measures of risk management. The kinds of conversation that we need to have about the future of contract law seem to be increasingly regulatory and of a new coherentist kind. The traditional principles and doctrines of the law of contract are being overtaken by the next generation of transactional technologies.
