32) Therefore, even if consumers have the opportunity to read the contract of adhesion
and ask questions, it should not be expected that they read it with a completely objective eye, though legally it is assumed that they have.
According to the Discover Bank rule, unconscionability will occur (1) when the waiver "is found in a consumer contract of adhesion
," (2) in an instance where "disputes between the contracting parties predictably involve small amounts of damages," (3) "when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money," and (4) when the waiver becomes an exemption of the party's responsibility for its fraud or willful injury to the person or property of another.
contract is unconscionable if it is a contract of adhesion
This "higher law" can constrain the terms in a contract of adhesion
of competition would invalidate a contract of adhesion
, such as
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.
Provisions in a contract of adhesion
are construed against the contract's drafter.
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.
offer of employment), and was not a contract of adhesion
The court held that even if the dealership agreement were held to be a contract of adhesion
, it would remain enforceable because it was not unconscionable.
One potential argument for preemption under section 301, at least in the context of mass-market licenses of software, is that the element of "bargain" is missing since the contract essentially is a contract of adhesion
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.
But even forum selection language contained in a contract of adhesion
is not ordinarily avoidable in the absence of specific evidence that the clause is fundamentally unfair.
The court further noted that this was not a contract of adhesion
, that is, there was no indication that the parties had unequal bargaining power or that the plaintiff had no alternative to hiring MEI.
A contract of adhesion
is one in which one entity writes the contract and the other party only has a choice either to accept it or reject it.