Difference between revisions of "Contract of Adhesion"
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| + | For a contract to be treated as a contract of adhesion, it must be presented on a standard form on a "take it or leave it" basis, and give one party no ability to negotiate because of their unequal bargaining position. | ||
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| + | ==Context== | ||
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| + | ==Problems== | ||
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| + | ==Solutions== | ||
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The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the ''[[Harvard Law Review]]'' published an influential article by Edwin W. Patterson in 1919.<ref>Patterson, E., ''The Delivery of a Life-Insurance Policy'', 33 Harvard Law Review, 198 (1919); see also [[Friedrich Kessler]], ''Contracts of Adhesion — Some Thoughts About Freedom of Contract'', 43 Colum. L. Rev. 629 (1943).</ref> It was subsequently adopted by the majority of American courts, especially after the [[Supreme Court of California]] endorsed adhesion analysis in 1962. ''See'' ''Steven v. Fidelity & Casualty Co.'', 58 Cal. 2d 862, 882 n.10 (1962) (explaining history of concept).<ref>[http://online.ceb.com/calcases/C2/58C2d862.htm Steven v. Fidelity & Casualty Co. (1962) 58 C2d 862<!-- Bot generated title -->]</ref> | The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the ''[[Harvard Law Review]]'' published an influential article by Edwin W. Patterson in 1919.<ref>Patterson, E., ''The Delivery of a Life-Insurance Policy'', 33 Harvard Law Review, 198 (1919); see also [[Friedrich Kessler]], ''Contracts of Adhesion — Some Thoughts About Freedom of Contract'', 43 Colum. L. Rev. 629 (1943).</ref> It was subsequently adopted by the majority of American courts, especially after the [[Supreme Court of California]] endorsed adhesion analysis in 1962. ''See'' ''Steven v. Fidelity & Casualty Co.'', 58 Cal. 2d 862, 882 n.10 (1962) (explaining history of concept).<ref>[http://online.ceb.com/calcases/C2/58C2d862.htm Steven v. Fidelity & Casualty Co. (1962) 58 C2d 862<!-- Bot generated title -->]</ref> | ||
| − | + | The special scrutiny given to contracts of adhesion can be performed in a number of ways: | |
*If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract. | *If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract. | ||
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:This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts. | :This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts. | ||
*The doctrine of [[unconscionability]] is a fact-specific doctrine arising from [[Equity (law)|equitable]]{{Citation needed|date=October 2011}} principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (''Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.''<ref>472 S.E.2d 242, 254 (S.C. 1996) (**Note: this definition is only good law in South Carolina)).</ref>) | *The doctrine of [[unconscionability]] is a fact-specific doctrine arising from [[Equity (law)|equitable]]{{Citation needed|date=October 2011}} principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (''Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.''<ref>472 S.E.2d 242, 254 (S.C. 1996) (**Note: this definition is only good law in South Carolina)).</ref>) | ||
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| + | [[Category:Glossary]] | ||
Revision as of 21:26, 7 October 2018
Full Title or Meme
For a contract to be treated as a contract of adhesion, it must be presented on a standard form on a "take it or leave it" basis, and give one party no ability to negotiate because of their unequal bargaining position.
Context
Problems
Solutions
The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the Harvard Law Review published an influential article by Edwin W. Patterson in 1919.[1] It was subsequently adopted by the majority of American courts, especially after the Supreme Court of California endorsed adhesion analysis in 1962. See Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862, 882 n.10 (1962) (explaining history of concept).[2]
The special scrutiny given to contracts of adhesion can be performed in a number of ways:
- If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract.
- Section 211 of the American Law Institute's Restatement (Second) of Contracts, which has persuasive though non-binding force in courts, provides:
- Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.
- This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts.
- The doctrine of unconscionability is a fact-specific doctrine arising from equitableTemplate:Citation needed principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.[3])
References
- ↑ Patterson, E., The Delivery of a Life-Insurance Policy, 33 Harvard Law Review, 198 (1919); see also Friedrich Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629 (1943).
- ↑ Steven v. Fidelity & Casualty Co. (1962) 58 C2d 862
- ↑ 472 S.E.2d 242, 254 (S.C. 1996) (**Note: this definition is only good law in South Carolina)).
