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It is also true that mandating generous terms might prevent the cross-subsidization of highvalue, sophisticated consumers by low-value, less sophisticated consumers that is entailed by the discretionary strategy. But by mandating generous standardform terms, the firm’s cost, and hence the competitive price, would increase. Such a price increase will almost surely be higher than the increase in value that any consumer type gets from the mandatory terms. The reason why this is so is crucial to understand, for it sharply distinguishes this analysis of mandatory standard-form terms from earlier law-and-economics work on the topic.

Although some courts have followed this recommendation, others have been, if anything, too cautious in enforcing such promises. My analysis suggests that with sufficient evidentiary safeguards, oral misrepresentations by a firm’s agent that deviate from standard-form contract terms are a form of opportunistic exploitation that should be deemed fraudulent and, hence, should constitute grounds for rescinding a contract. 15 On my analysis, standard-form disclaimers and merger clauses should not bar persuasive proof that oral representations were indeed made.

One way to measure intrinsic quality is the average number of problems per one hundred vehicles. 6 This quality gap is much smaller than the warranty-cost gap, in which an American OEM suffers a cost roughly four times as high as that of the Japanese OEM. These figures are consistent with the prediction that parties who believe that they can shift the cost of liability onto others would do less to reduce this cost.

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