How can there be a meeting of the minds when one party sets all the terms?
When I was taking the class First Year Contracts with the exceptional Harvard Law professor Lon Fuller, we learned about how freedom of “contract” replaced the subservience of “status” back in medieval Europe. We also learned that the two principal pillars of American jurisprudence were the law of contracts and the law of torts.
Our year-long contracts course was overwhelmingly about negotiated contracts because that was where the jobs were. Contracts of adhesion—those that are written to heavily favor one side and leave the other with little or no room to negotiate—were largely ignored. This was true despite the fact that 99 percent of all contracts that people entered into even then were of the standard “fine print” kind. Contracts for insurance, banking, mortgages, installment loans, transportation, hotel, entertainment, and a host of other engagements were even then very one-sided and unalterable.
Adhesion contracts presently are much more draconian. Harvard Law Professor Elizabeth Warren now calls these contracts “mice print full of fees and traps.” Compulsory arbitration, unilateral modification, penalties, and many other clauses in often tiny, unreadable print keep consumers from being able to go to court or even know what alterations are being made by the seller or its assignee. Every year, trillions of dollars are processed under these forms of contract servitude.
I wish we had studied this burgeoning contract peonage and the way consent is dictated by vendors and too often upheld by the courts based on the legal fiction of a “meeting of the minds.” How can there be a meeting of the minds when one party sets all the terms—and makes sure they are difficult to comprehend?
Through my years of consumer advocacy, it was evident that underneath so many business abuses—both simple and complex—are the contracts. Such contracts weaken the tort rights of wrongfully injured people and the daily rights and remedies of workers, tenants, debtors, shippers, taxpayers, pensioners, and many others.
Don’t believe that a condition of law school is that you forfeit your right to think critically and sometimes question what you’re being taught. Ask how many classroom hours your teacher devotes to adhesion contracts. And visit our contract reform project at faircontracts.org.