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Contracts: Adhesion & Unconscionability

Not all contracts involve extensive negotiation between all parties and a deal being hammered out in detail and reduced to writing. Most contracts, instead, occur when one person adheres to the terms and conditions of an offer. For example, when I go and purchase a TV at a local store for the list price, I’m simply adhering to the store’s offer: in consideration for the retail price, they sell me the TV.

For the most part, there isn’t a major legal difference between contracts which arise from negotiation and adhesion. The key, rather, is assent. They can in certain circumstances, however, result in different modes of interpretation. In a negotiated contract, the words of agreement describe the terms of the bilateral assent and so when stated unambiguously are sufficient to disclose the reasonable expectations of the parties. In a contract of adhesion, however, the terms are imposed by the proponent of the form: they are not expected to be read and even if read, the adherent has choice only to conform.

Adhesion is closely related to the legal theory of unconscionability. Unconscionability is a defense in contract law in which the Court will not enforce or honor a contract because the either the process of making the contract was grossly one-sided, or the substance is closely one-sided. Although adhesion contracts are clearly permissible, there is an argument to be made that in certain circumstances they can be procedurally unconscionable.

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