Talk:Standard form contract
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I've basically re-written this article, and changed it from adhesion contracts to standard form contracts which is the more commonly used term, especially outside the US. The section on common law treatment could be expanded to other jurisdictions (UK, NZ) and the section on legislation could be made more specific, though that's a daunting task considering the variety of the law out there. I don't know much about European/civilian law, so that could be added to aswell... Psychobabble
Seems that the quite successful use of Standard forms of Contract in the building industry might need inclusion in this article - I don't know anything about US construction Law though, but I could write a little on the UK side of things. mcginnly
Add a UK section, whats preventing you from doing that? It should be noted that Standard Form Contracts and Contracts of Adhesion are the same thing, but boiler plates are similar, though distinct in that they are basically restricted to "disclaimers" or "contracts" on the back of ticket stubs, claim checks, etc. They are called boiler plates for a reason, and that reason is because the contract resembles a boiler plate. Failure to notice this is a failure to recognize the legal terms of art. Also, the article is one sided as hell. Standard form contracts have vast advantages. 1) Efficiency in many ways, when the court interprets one std form K, all are interpreted; reduce the time and trouble needed to draft a k; and make planning and a solid contract available. 2) Risk assessment and security; risks become more calculable, and security becomes more foreseeable. DeWitt
Why are they called "adhesion" contracts?
It would be nice if the article explained this, especially to legal laypersons who might be curious. +ILike2BeAnonymous 06:59, 15 January 2007 (UTC)
- It comes from the meaning of adhesion in the sense of something sticky. A contract of adhesion is one you are literally stuck with in the sense that it is stuck before your face and you either have to sign it or walk. That is, you either have to take the contract as is or completely forego the service that is being sold along with the contract, because all sellers use similar contracts and the buyers do not have enough buying power to negotiate for significant modifications of the terms.
- For example, all car dealerships in the United States traditionally use the same contract (with minor modifications for each state) for sales of cars on credit. If you don't want to sign that contract, you will not get a car. You can always buy a car with cash, but unless you're Donald Trump, you will have to wait at least a few months (or years) to save up enough money to buy a car free and clear. In contrast, in high-value transactions involving art, corporations, athletes, and so on, sophisticated, wealthy and powerful persons can sit down together in a conference room (accompanied by a small army of lawyers for each side) and argue over every point in the contract. --Coolcaesar 09:06, 15 January 2007 (UTC)
- The classic example of an adhesion contract, the one given to me by an actual lawyer when I asked what the term meant, is the ticket you get from a parking garage that has legalese printed on the back. This is the classic "take it or leave it" contract that you implicitly sign by accepting; maybe it should go into the article as an explanation.
- By the way, another aspect of these contracts that ought to be dealt with in the article is the fact that they are, as I understand it, fairly unenforceable. Courts tend to recognize the unequal power relationship between parties and take that into account when litigation over these contracts comes up; this ought to be covered as well. +ILike2BeAnonymous 03:51, 19 February 2007 (UTC)
The article fails to go into the positive aspects of the Standard form contract. It is one sided and opposed to it.126.96.36.199 21:22, 28 January 2007 (UTC)
- There are parts of this that should probably be reworded for neutrality. Why not have a go yourself? — mholland 21:59, 28 January 2007 (UTC)
This article details a recognized area of legal analysis, which tries to ameliorate the negative effects of standard form contracts. There is no place in that legal discussion for advocating the use of such contracts; that is an economic, business, or ideological discussion outside the scope of legal research. Questioning the neutrality of this article because it fails to identify the positive aspects of standard form contracts reveals a poor understanding of legal studies.
Neutrality or confusion?
I think the problem here may not be neutrality, but confusion as to what this is refering to. If you look to the bottom of this there's a link to JCT, and it was a discussion of the type of contracts that they provide that I was looking for. Essentially JCT is a commercial organisation which sells neutral contracts to people in the construction business, but there are a number of other organisations doing similar things. The value is if you have a standard form of contract, you know it's fair and should you need to go to court there is plenty of precedent about the outcome. As I understand it, it also includes a clause (2.21) which overrides the terms of any contract bills attached to the project - which is the (potentially) skewed boiler plate text that you are talking about and which can lead to these so-called 'battle of the forms'. I think you need to go back to the adhesion contract name. I'm afraid I can't really write this up as I am just a second year Architecture student in the UK and basically only have a superficial understanding of the subject.Klue 11:44, 5 April 2007 (UTC)
I would agree with Klue. The problem here is not neutrality as such as much as it is confusion. All adhesion contracts are standard form/boilerplate contracts, but not all standard form/boilerplate contracts are adhesion contracts. For a good counterexample, consider invoices and purchase orders. These are essentially standard form contracts, many of which contain boilerplate language on the reverse. Between a corporation and an individual, this may well be an adhesion contract, but between two savvy operators, e.g. two large businesses, these are likely to be negotiable. A standard form contract can become a contract of adhesion if the difference in bargaining power between the parties is sufficiently inequitable.Valkyryn 22:19, 3 October 2007 (UTC)
Having found no argument or justification for the inclusion of the neutrality tag whatsoever, I am removing the tag. Feel free to re-add it if accompanied this time by at least a nominal description of a neutrality problem on this talk page. 188.8.131.52 (talk) 16:58, 27 February 2008 (UTC)
Even if this is the case, it is argued by some that only a small percentage of buyers need to actively read standard form contracts for it to be worthwhile for firms to offer better terms if that group is able to influence a larger number of people by affecting the firm’s reputation.
But don't companies in some cases actively advertise that their contracts offer better terms? (for example the common advertising catchphrase "no hidden fees") --Random832 (contribs) 16:32, 30 July 2008 (UTC)
Maybe someone could throw in a reference to [Hobson's choice] if it seems appropriate. Probably not for every case, but it makes sense for the "take it or leave it" type of this contract.184.108.40.206 (talk) 06:16, 4 October 2008 (UTC)
Link to the French Wikipedia
First of all, I wish to apologize because the English is not my mother tongue, so I can commit some errors. I think that the link of this article to the French Wikipedia could be wrong, because a contract of adhesion is not the same thing that an abusive clause in a contract (though it may be similar in some cases). I suggest that someone with enough knowledge of English and French redirect the link to the right article or erase it. --220.127.116.11 (talk) 02:15, 26 December 2008 (UTC)
- And by the same token, "standard form contract" is not a synonym for "abusive clause in a standard form contract".
At the introduction, "... i.e. take it or leave it..." is illustrative, not a definition (!). A objective contract (where the partners will focus on a standard object) is not a "...a contract that is entered into between unequal bargaining partners...". Main reasons:
- Focus on a standard object: partners are equal about many other objectives, such as speed, reliability, (low) transaction cost, that justify the standarization of the contract text.
- Context of the transaction: the article ignore that all commercial standard form contract is at a market context. There are a freedom of market choices: "take it or leave it" is "take this choice with this terms, or go back to the market and take another choice".
- They are not always binary contracts: a form with a lot of clauses with checkboxes (clause options/variations) is a good example. The more checkboxes, more equal bargaining. The customer (and the company's representative) is in position to negotiate with the checkboxes.
- PS: writing laws and contracts are not a creative process. Contracts and law are filled with tradictions, etc. "Standard text blocks" is better than "creative text blocks" in this context.
The "Conceptual error?" topic above shows an overview of the problem. The article begins with a criticism, and then spend a large portion with the criticism. Sugestion:
- select a set of cosensual references (not webpages, ex. see books and articles of Transaction cost);
- correct (with neutral content) the lead section;
- change the section title "Theoretical issues" to "Criticism" (see Wikipedia:Criticism), cuting some blocks for the adaption below;
- preserve and adapt some blocks for a new "Theoretical issues" with a neutral point of view. There are two main topics, where we can use some "theoretical arguments" and main references,
- When the standard contract is good (market situation) and when is not (monopoly and specialized object situations).
- Types of standard contracts: from the "unique choice text" (take it or leave it) to the "many choices" (checkboxes) and "free placeholders" forms.
- add a section "Typical abuses": puting the criticism in the perspective of the abusive uses (of the standard form contract) and distortions.
The general issue is that not only is there no opportunity for negotiation, one is in a position where one has a choice between agreeing to this "contract" and being out of contact with the world. That has led to contracts that seem light-years away from even normal standard-form contracts in terms of one-sidedness.
A particular instance (Hampton Inn in Littleton, NH) that I have recently experienced has added further issues that I would like clarified as I'm having trouble believing that these things are valid and want to understand if they are and what form of political action would be necessary to put things back on some reasonable (according to my own definition, to be sure) basis.
I guess it is clear why am not the person to update this page. Not only only don't I understand the law in this area, I am not approaching this primarily with regard to delineating existing law. My concern is making the law a whole bunch nearer what I think it should be, but I think concern does cause me to raise questions that people are going to want answered about existing law.
The specific issues that were raised by this experience:
- The document specified that it was "a binding legal contract" and I'm wondering if it really is/was.
- There was a lot of verbiage about digital signatures, but none of it seemed to address the fundamental issue why we have signatures, to verify that the person signing is known (and known to be of age, etc.). In particular, twelve-year-old's excited to get facebook would almost certainly hit "accept" without thought, to be in contact with their friends. There was this stuff where the signer asserts that they have the right to sign (on behalf of everybody using the connection I believe) but if they don't have the authority to begin with, how can this assertion bootstrap us up to a signature. Somebody accepted it. Big deal.
- The document was enormous. I'm guessing eight pages printed. The preface said I shouldn't agree unless I read and understood all of the provisions (was it each and every provision?). Since it is clear that 99.99% at least of the people agreeing could not meet that standard in terms of understanding (and almost all would give up and just accept), and that is obvious to those putting this forth, we have something that is fundamentally dishonest. Isn't it?
- The document later says that you should get legal review of such contracts. Unclear how that could happen unless you or your significant other were a lawyer who had no need to sleep. I can't even imagine the cost of serious legal review of such a document. Hard to imagine that those writing this don't know that. Again, we have case of a fundamental dishonesty.
- There seemed to be efforts made to make it difficult/impossible to get a copy of the proposed terms so that one might study them for next time. In addition, it seemed to me that a claim was being made that the text was copyrighted and that you could not publish it. Not sure though.
- I'm no expert but it seemed the document was as one-sided as it could possibly be (one exception, see next section). I would expect that that was part of the goal in drafting it. All sorts of obligations for you. I didn't see any for them. If you did somehow get a court to find some kind of obligation which they violated, you agreed that a cup of coffee (or something trivial) would cover it.
- I may have let it slipped by in this case but in the past, I have actually seen statements that assert their right to modify the terms (I presume in the case where they found some way to make the terms even more one-sided) without notice. You are supposed to check periodically to find out what your new obligations. (It really is hard to believe that they will add obligations of theirs). There are no tools to diff these things mentioned, so I would imagine that you have to rescan the whole nightmare to find out whether you can still live in your house or can say anything negative about the hotel. My lack of objectivity is showing but I'm just wondering how anybody gets the chutzpah to write this kind of stuff. I don't expect the wikipedia page to answer that question. I guess my lack of "objectivity" is showing.
I didn't hit accept. When I checked out of the hotel I briefly told the manager why I was unable to use the "complimentary Internet Access". She told me, almost certainly honestly, that nobody had ever complained. I felt really good that I was able to get through the process and not scream at anybody. It wasn't her fault.
Again, solely to give you background, on why I want to understand existing law, I'm as much troubled by the fact that human beings can write this kind of stuff and present it to other humans beings to sign, as I am by the content itself. Does existing law encourage those writing such things to believe they can treat their fellow-citizens in this way? Have natural persons become the new harijans (sp?) afraid to let our shadow cross the august corporate persons. If you are thinking "left-wing idiot", the "idiot" part is clearly a matter of judgment about which we can differ, but you should know that I'm the kind of Democrat who believes that the minority opinion in Ricci v. de Stefano is atrocious and incoherent. It is not only the tea-partiers and "progressives" who believe that we have to take our country back.
Doesn't sound objective
I dislike these sneaky contracts as much as anyone and am glad when they take a fall, but the article reads more like a polemic on what's wrong with these contracts than an article on legal doctrine. It should take a cooler tone.
There is much debate on a theoretical level whether, and to what extent, courts should enforce standard form contracts.
How could there be any doubt on "whether"? Any time you take a ticket in a parking lot, you have a contract, and it's enforceable. Most of the time, most of the standard language conforms to common practice and to the expectations of both parties. And most of the time, courts will enforce them routinely, and be right. Are they just enforcing simple common-sense fairness each time, ignoring the language on the back of the ticket?
The debate concerns to what extent, and in some cases, whether.
The author of the article seems to be using "standard form contract" as a synonym for "abusive aspect of standard form contract".
Like I said, I hate these contracts too, but I want to read an article on contracts. I can do my own advocacy.