for dissolution or change of the contract of adhesion
. Second, it
(41) Usually the consumer is presented with a contract of adhesion
by a salesperson.
If the Supreme Court continues to interpret the FAA in such a broad, preemptive manner and fails to address the policy considerations, legislation may bring about reform by preventing the contracting party from including a class action waiver clause in a contract of adhesion
. (190) This would allow courts to preserve Congress's original intent in creating the FAA while preventing this problem.
A contract of adhesion
is generally defined as a standardized
Yet it is still more disturbing than a mere consumer contract of adhesion
because unlike some objective manifestations of assent that routinely precede formation in most form contracting, there is precious little most citizens do to manifest assent.
Provisions in a contract of adhesion
are construed against the contract's drafter.
(25) They argued that because the insurance policy could be characterized as a contract of adhesion
, the one-year limitation should be struck down as unreasonable.
Applying this approach, the court first determined that the clause in question here did constitute a contract of adhesion
. The school board was the more powerful bargaining party, as evidenced by the teachers' lack of a union, the many applicants for Klyap's position, and the form contract with a blank for the salary.
The court observed that "an action against her own union may well be available." The court explained that a contract of adhesion
was a contract with terms dictated by one contracting party to another party who had no voice in the contract's formulation.
There are at least four potential arguments against the enforcement of shrinkwrap and clickwrap agreements: (1) the contract is unenforceable due to a lack of assent (depending on the location of the license within the packaging); (2) the agreement is an unenforceable contract of adhesion
; (3) particular terms are unconscionable; or (4) for expensive software, the contract is unenforceable under the statute of frauds.
Leasing of San Francisco, a bank leasing company, claiming a June 1997 agreement it held with Watty Wills was an "unconscionable, usurious and commercially unreasonable contract of adhesion
resulting in a punitive penalty" against Wills' estate and "therefore null and void."
Generally, mere inclusion of the clause in a contract of adhesion
will not defeat its enforcement unless the resisting party can show that the clause resulted from the "unfair use of superior power to impose the contract upon the other party" or it was not within the reasonable expectations of that party.(6) An "unfair" imposition of such a term would likely involve the imposition of a forum selection clause as a means of discouraging legitimate claims.(7)