Law
Adhesion Contract
An adhesion contract is a type of contract that is drafted by one party and presented to the other party on a "take it or leave it" basis. The terms of the contract are typically non-negotiable, and the party with less bargaining power is often forced to accept the terms in order to obtain a good or service. These contracts are often used in consumer transactions, such as when purchasing a car or signing up for a cell phone plan.
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eBook - PDF- Andrew Dyson, James Goudkamp, Frederick Wilmot-Smith, Andrew Dyson, James Goudkamp, Frederick Wilmot-Smith(Authors)
- 2017(Publication Date)
- Hart Publishing(Publisher)
* This chapter elaborates on ideas first introduced in Chapter 20 of my Contract Law and Legal Methods (New York, Foundation Press, 2012). I would like to thank Andy Dyson, James Goudkamp, and Frederick Wilmot-Smith for inviting me to join the seminar out of which this volume has grown and the other participants in that seminar for lively and thoughtful engagement with the ideas in this chapter. 1 An early discussion, which may have introduced the term ‘contract of adhesion’ to US lawyers, is E Patterson, ‘The Delivery of a Life-Insurance Policy’ (1919) 33 Harvard Law Review 198, 222. Patterson used the term ‘adhesion’ only once, and introduced it with the following footnote: ‘This expressive term seems worthy of a place in our legal vocabulary. See R ENÉ D EMOGUE in M ODERN F RENCH L EGAL P HILOSOPHY , 472, 477; 2 M. P LANIOL , T RAITÉ E LÉMENTAIRE DE D ROIT C IVIL , § 972. A similar usage occurs in international law. See I O PPENHEIM , I NTERNATIONAL L AW , §§ 532, 533’. 2 This feature likely gave this class of contracts its name. The term ‘adhesion’ was borrowed from French legal scholars who likely themselves borrowed from the law of treaties, and in particular the prac-tice whereby a group of states negotiating a treaty leave the treaty open for adhesion by additional states, who must, however, take or leave its terms. See AL Corbin, Corbin on Contracts , vol 1, Joseph M Perillo (ed), rev edn (St Paul MN, West Publishing Co, 1993) § 1.14. 3 This definition is standard in its substance. Its language closely tracks T Rakoff, ‘Contracts of Adhesion: An Essay in Reconstruction’ (1983) 96 Harvard Law Review 1173, 1177.
eBook - ePubContract - Freedom and Restraint
Liberty, Property, and the Law
- Richard A. Epstein(Author)
- 2013(Publication Date)
- Routledge(Publisher)
13 but as a practical matter they are acquiesced in frequently, thus becoming part of the “living law”. Lastly, standardized contracts have also been used to control and regulate the distribution of goods from producer all the way down to the ultimate consumer. They have become one of the many devices to build up and strengthen industrial empires.And yet the tremendous economie importance of contracts of adhesion is hardly reflected in the great texts on contracts or in the Restatement. As a matter of fact, the term “contract of adhesion” or a similar symbol has not even found general recognition in our legal vocabulary. This will not do any harm if we remain fully aware that the use of the word “contract” does not commit us to an indiscriminate extension of the ordinary contract rules to all contracts. But apparently the realization of the deepgoing antinomies in the structure of our system of contracts is too painful an experience to be permitted to rise to the full level of our consciousness. Consequently, courts have made great efforts to protect the weaker contracting party and still keep “the elementary rules” of the law of contracts intact. As a result, run common law of standardized contracts is highly contradictory and confusing, and the potentialities inherent in the common law system for coping with contracts of adhesion have not been fully developed. The law of insurance contracts furnishes excellent illustrations. Handicapped by the axiom that courts can only interpret but cannot make contracts for the parties, courts had to rely heavily on their prerogative of interpretation to protect a policy holder. To be sure many courts have shown a remarkable skill in reaching “just” decisions by construing ambiguous clauses against their author even in cases where there was no ambiguity. Still, this round about method has its disadvantages as the story of the treatment of warranties in life insurance contracts strikingly demonstrates. Courts, when protecting an innocent policy holder against the harshness of the doctrine; did not state clearly that as a matter of public policy an insurance company cannot avoid liability merely because of the falsity of a statement which has been labelled “warranty”. They felt that freedom of contract prevented them from saying so. Instead they disguised as “interpretation” their efforts to change warranties into representations.14 But this makeshift solution tempted insurance companies to try the usefulness of “warranties” again and again.15
- Christopher Heath, Kung-Chung Liu, Christopher Heath, Kung-Chung Liu(Authors)
- 2006(Publication Date)
- Hart Publishing(Publisher)
The use of standard form 2 contracts in order to bind users of copyright works is a relatively recent phenomena. The use of Adhesion Contracts in copyright trans-actions really began in 1980’s with shrink-wrap licences for software products and thereafter for databases; and then spread dramatically with the advent of the Internet in 1990’s. Digitisation and the availability of worldwide networks resulted in easy cheap and perfect reproduction and dissemination of every kind of work 1 * The author would like to thank Professor P. Maggs for his comments on US law. Spoor , General aspects of exceptions and limitations: general report, in L. Baulch, M. Green and M. Wyburn (eds.) ALAI Study Days—The Boundaries of Copyright: its proper limitations and exceptions, Sydney, Australian Copyright Council, p.27–41 (1999), at point 6: Circumventing the exceptions. This example relates to the time when authors had not been given the right of rentals; Hugenholtz , Code as code or the end of intellectual property as we know it, Maastricht J. of Eur. and Comparative law, vol. 6, n. 3, 308 (1999). 2 The words “standard form” and “adhesion” are used interchangeably. (books, music, software, newspapers, databases ... ) 3 . This development and the fre-quent use of adhesive contracts have made it possible for the right-owner to estab-lish a direct contractual relationship with each and every end-user, binding them in a very speedy and cost-effective manner. Such contracts regulate the delivery of content to users and determine the conditions of use of a work with such ease and at such low cost that many right-owners have jumped on the band wagon. Their use have become such a ready and easy means for right-owners in search of greater rights, so much so that it has added to and even supplanted the current copyright protection 4 . Not only can users rely on copyright to control the use of works but, even better, they can craft their own conditions to do the same.
eBook - PDF- Hugh Collins, Keith Ewing, Aileen McColgan(Authors)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
212. 104 Terms of the Contract of Employment and impoverished, a typical worker will be reluctant to quit a job, even if the employer makes increasing demands for harder work and imposes tougher conditions. The employer usually operates without such pressures because in general workers can easily be replaced. The presentation in law of the employ-ment relation as a contract that is freely entered into on the basis of consensual terms belies the reality in many instances of a contract reluctantly undertaken by the employee as a matter of necessity without any real choice about the terms. Building on that point, the employer ’ s superior bargaining power permits it to impose a standard-form contract on the employee. Today, an employer typically requires an employee to agree to a standard-form contract on a take-it-or-leave-it basis. 14 The printed contract supplied by the employer may provide some entitlements for employees, but it also contains an extensive list of requirements. In short, the employer typically dictates all the rules that govern the workplace and the employment relation. These rules not only specify the content of the job to be performed, but also insert the contract into the organisational framework of larger employers. For instance, the rules may specify the clothing to be worn at work, how employees should conduct themselves towards co-workers and customers, how they should perform within the bureaucratic organisation, how they might make complaints and how discipline will be exercised. Some employers ’ rules go further and seek to dictate an employee ’ s lifestyle outside of the workplace. The rules constitute not just a contract, but a code to govern the worker and the workplace. The employer ’ s unilateral power to legislate this code is heavily disguised by the legal image of the consensual agreement of a contract.
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