Re: Fwd: CNI-COPYRIGHT Digest #2106

From: Kevin Grierson <kgrierson[_at_]wilsav.com>
Date: Thu, 28 Aug 2003 14:09:32 -0400

You've quoted Bob out of context. What he said was "contracts of adhesion are not enforceable because the parties are not on equal terms." Under U.S. common law, if a contract (or provision thereof) looks really unfair to one party, and that party had little or no bargaining power relative to the other party to the contract, then those terms may not be enforced.

One of the Gateway clickwrap cases had facts that serve as a good example. The consumer got a contract in the box that said that any disputes would be arbitrated in front of the International Chamber of Commerce, and that each party would bear its own costs. Since it costs over $4,000 to file an arbitration with the ICC, the odds were that it would be dramatically more expensive to make a claim against Gateway than the computer was worth. The court found the contract generally enforceable, but that particular term unconscionable. The term was unfair, and the consumer had no bargaining power (in fact, he didn't even know of the term until he unpacked the box, and then his only option was to send the thing back if he didn't like the terms).

kwg

Kevin W. Grierson
Willcox & Savage, P.C.
One Commercial Place, Ste. 1800
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
ph: 757/628-5603 fx: 757/628-5566
http://wilsav.com
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>>> irm[_at_]in3activa.net 08/28/03 11:00AM >>>

> There are many things that could make a contract
> unenforceable, such as
> illegality, unconscionability, and coercion. Often,
> contracts of adhesion are not enforceable because the parties are not on
equal
> terms. Thus, yes, some promises are unenforceable.
> -Bodi

"A contract is not enforceable if parties are not on equal terms" ?

Can you provide references for this ?

Thanks

I.R.Maturana -- http://www.in3activa.org (LPT-ESv1r3 - http://www.in3activa.org/doc/es/LPT-ES.html)

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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Thu Aug 28 2003 - 22:09:32 GMT