DOCSLIB.ORG

Unfair Contract Terms

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Unfair Contract Terms Unfair Contract Terms Protections for small businesses Isla McRobbie and Matthew Lang #6374386 Disclaimer Disclaimer: This presentation is intended to provide general information only and should not be relied upon as legal advice. If you require legal advice on a matter please contact us. Liability limited by a scheme approved under Professional Standards Legislation. 2 Background • Until recently, the unfair contract terms (UCT) regime applied only to individuals who entered into “consumer contracts”. • The UCT protections now apply in a “business” to “business” context. • The UCT regime permits Courts to declare “unfair” contractual terms in business to business contracts void and unenforceable. 3 Background – policy drivers Why is this protection required? • The primary policy consideration for the extension of the UCT protections to small businesses is to address the vulnerability of small businesses when contracting with larger businesses. • Small businesses, in the same way as consumers, often lack the relevant knowledge, experience, resources or bargaining power to negotiate fair contracts. • UCT protections found in the Australian Consumer Law (ACL) 4 \ ‘Balance of Power?’ 5 Setting the Context … Why might you need to know about UCT? Business which Small Business ‘issues’ the ‘Recipient’ of Business costs contract to a contract “small business” General awareness of As a consultant Negotiation tool issues relevant advisor to your industry 6 Issues raised by Representative bodies • Submissions from many industry bodies (particularly in construction industry which may see itself as being more affected) • Impact of unfair contracts on: . Business costs . Community • Common use of standard form contract 7 Submissions General issue raised Commentary Tender Process Cost, excessive competition, unpaid expertise/ideas Risk allocation Unfair, not allocated to party best suited (generally just away from client) Insurance and Indemnities Not fault based, uninsurable risk, required levels of insurance, proportionate liability, unlimited liability Standards of Care Fit for purpose Fixed Price Variable scope Damages Inequitable, LD’s, design errors and omissions * Institute of Architects, Association of Consulting Architects, Consult Australia, IBC 8 The new law Section 23 of the ACL provides that a term of a “small business contract” is void if: • the term is “unfair”; • the contract is a “standard form contract”. The new law will apply to contracts that are entered into, or varied, after 12 November 2016. 9 Does the B2B UCT regime apply to me? There are 5 questions: Will the contract be entered into, renewed or varied after 12 November 2016? Is the contract a “small business contract”? Is the contract a “standard form contract”? Is the term “unfair”? Does an exemption apply? 10 Small business contract Is the contract a “small business contract”? A “small business contract” • is a contract for: . the supply of goods or services . the sale or grant of an interest in land . a financial product; or . a contract for the supply, or possible supply, of services that are financial services. • where, at the time the contract is entered into: . at least one party is a “small business”; and . the “upfront price payable” under the contract does not exceed: o $300,000 for a contract with a term of 12 months or less; or o $1,000,000 for a contract with a term of more than 12 months. 11 What’s a small business? • A “small business” is a business that employs less than 20 people. • When calculating the number of employees of a business, each full-time and part-time employee should be counted as one person. • Casual employees are only to be counted if they are employed on a regular and systematic basis. 12 Standard form contract Is the contract a “standard form contract”? • Generally speaking, a contract is a standard form contract where one party imposes the terms of the contract on the other party on a ‘take it or leave it’ basis. • If a party alleges a contract is standard form, the court must presume that the contract is standard form unless another party proves otherwise. 13 Standard form contract Alarm bells should ring if the answer is “yes” to one of the following: Yes No Was the contract drafted by one party before the parties entered into discussions? Does the contract fail to take into account the specifics of the particular deal? Was the contract presented to the counterparty on a ‘take it or leave it’ basis? Was the contract not subject to negotiation (other than price, the subject matter of the contract)? Does one party have most of the bargaining power? 14 “Unfair” Is the term “unfair”? The test of “unfairness” has three limbs, all of which must be satisfied on the balance of probabilities: . The term would cause a significant imbalance in the parties’ rights and obligations arising under the contract. The term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term. The term would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on. 15 “Unfair” • When applying the test, the ACL permits the Court to consider any matter it considers relevant, but must take into account: . the extent to which the term is “transparent”; and . the contract as a whole. • A term is “transparent” if it is legible, presented clearly, expressed in reasonably plain language, and readily available to any party affected by the term. 16 “Unfair” The ACL contains a list of terms that may be considered to be unfair in some circumstances. • Default clauses: terms that contain excessive or punitive consequences for default (e.g. default interest rates, penalty fees); • Unilateral variation: terms that entitle one party to unilaterally vary essential terms (e.g. price / payment terms) without giving the other party a termination right; • Non-mutual assignment: terms that permit one party to assign rights under a contract without consent and to the detriment of another party; 17 “Unfair” • Excluded remedies: terms that exclude certain remedies for default; • Termination without cause: terms that give one party an entitlement to terminate at any time, without cause and on short notice; and • Wide non-fault based indemnities: • A wide indemnity that applies in respect of all loss or damage that might be suffered, regardless of “fault”. • Indemnities that result in a party being liable for things that are outside of their control or do not arise from their breach of contract. 18 Exclusions and exceptions The following categories of terms are excluded from the UCT regime: . Terms that define the main subject matter of the contract . Terms that set the upfront price payable . Terms that are required or expressly permitted by a law of the Commonwealth, or a state or a territory (e.g. permitted under the Franchising Code or another prescribed industry code). 19 Exclusions and exceptions The following categories of contract are excluded from the UCT regime: . Contracts entered into before 12 November 2016 (unless renewed on or after this date) . Shipping contracts . Constitutions of companies, managed investment schemes or other kinds of bodies . Certain insurance contracts covered by the Insurance Contracts Act 1984 (e.g. car insurance) . Contracts in sectors exempted by the Minister – no sectors are currently exempt. 20 Relevance in the Construction Industry (and consultant services) • So how might this be relevant in construction and consultant services? Provision Possible Issues Liquidated Damages • Unreasonable caps? • Application of LD’s for consequences higher up the contracting chain • Onerous pre-conditions Limits on liability • One sided • Uncapped (and therefore extreme) Wide variation rights • What is being varied? Price? Right to object • Outside general scope? One sided termination • Termination for convenience clauses – what are the other party’s rights 21 Relevance in the Construction Industry (and consultant services) Provision Possible Issues Time Bars • Short notice periods? • Waiver of rights if no response within time? Limit on one party’s rights • To reflect a process up contracting chain? to commence • Express denial of right? proceedings Limit one party’s vicarious • Acts of employees or agents attributed to other liability for agents party One party entitled to • Could there be detriment? assign without consent 22 Relevance in the Construction Industry (and consultant services) Provision Possible Issues Unilateral right to • By a Superintendent? Principal’s rep? determine • What if Superintendent required to be honest and impartial? Warranty for work of • For example in accepting a preliminary design, others required to be liable for work of others Novation • Obligation to be novated without right to object 23 And what about Indemnities?.... Watch out for one sided indemnities… Indemnity transferring liability to small business regardless of fault Indemnity requiring small business to be liable for other party’s negligence (Possible?) Unlimited indemnity(?) Unfair Terms Indemnities for certain aspects of loss (consequential loss or LD’s) Proportionate liability – contracting out? [insurable?] 24 So what? What happens if a term is unfair? • Unfair contract terms are void. • If a Court declares that a term is unfair under the UCT regime, the unfair term will be unenforceable and treated as if it did not exist. • The contract will continue to bind the parties if it can operate without the unfair term. Severance clauses are crucial. • It is not an offence to include an unfair term in a small business contract and there are no pecuniary penalties (fines) for doing so. 25 Enforcement and remedies • If a court finds that a term in a contract is unfair, it can make a range of orders, including: . declaring all or part of a contract to be void; . varying a contract; . refusing to enforce some or all of the terms of a contract or arrangement; . directing a party to refund money or return property to the small business affected; or .
Load more

Recommended publications
  • Standard Form Contract For
    Sheet No. 49.4-A Effective July 11, 2018 APPENDIX IV STANDARD FORM CONTRACT FOR HAWAI‘I COMMUNITY BASED RENEWABLE ENERGY – PHASE ONE THIS CONTRACT (“Contract”) is entered into as of __________, 20__ (the “Effective Date”), by [Hawaiian Electric Company, Inc., Maui Electric Company, Ltd., Hawai‘i Electric Light Company, Inc.], a Hawai‘i corporation (hereafter called "Company") and ____________________ (hereafter called “Subscriber Organization”). Together, the Company and Subscriber Organization are the “Parties” and may singularly each be referred to as a “Party.” R E C I T A L S: Company is an operating electric public utility on the Island of [Hawai‘i, Lanai, Maui, Oahu], subject to the Hawai‘i Public Utilities Law (Hawai‘i Revised Statutes, Chapter 269) and the rules and regulations of the Hawai‘i Public Utilities Commission (hereinafter called the "PUC" or the “Commission”); and The Company System is operated as an independent power grid and must both maximize system reliability for its customers by ensuring that sufficient generation is available that meets the Company’s requirements for voltage stability, frequency stability, and reliability standards; and Subscriber Organization desires to operate a renewable energy facility that is classified as an eligible resource under Hawai‘i's Renewable Portfolio Standards Statute (codified as Hawai‘i Revised Statutes (HRS) 269-91 through 269-95) and that qualifies for the Community-Based Renewable Energy (“CBRE”) Program (the “CBRE Program”); and The PV System to be developed by the Subscriber Organization will be an established or planned solar photovoltaic electric generating facility with a nameplate capacity of ______ kilowatts of alternating current (AC), on property located at _______________________ (hereinafter called the "CBRE Project").
    [Show full text]
  • Mutual Assent, Normative Degradation, and Mass Market
    Cleveland State Law Review Volume 62 Issue 2 Article 7 2014 Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts––A Two-Part Critique of Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (Part I) Steven W. Feldman U.S. Army Engineering and Support Center, Huntsville, Alabama Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Contracts Commons How does access to this work benefit ou?y Let us know! Recommended Citation Steven W. Feldman, Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts––A Two-Part Critique of Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (Part I), 62 Clev. St. L. Rev. 373 (2014) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol62/iss2/7 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. MUTUAL ASSENT, NORMATIVE DEGRADATION, AND MASS MARKET STANDARD FORM CONTRACTS—A TWO-PART CRITIQUE OF BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS AND THE RULE OF LAW (PART I) * STEVEN W. FELDMAN ABSTRACT Analyzing a difficult subject that pervades contract law and which is vital to the national economy, many scholars have written about boilerplate contracts. With her 2013 book, Boilerplate: The Fine Print, Vanishing Rights and the Rule Of Law, Professor Margaret Jane Radin weighs in on the discussion, rejecting utilitarian-welfare notions that economic efficiency can justify the extensive use of mass market boilerplate.
    [Show full text]
  • An Overview of Indemnification and the Duty to Defend
    AN OVERVIEW OF INDEMNIFICATION AND THE DUTY TO DEFEND Indemnification & Duty to Defend Subcommittee, ACEC Risk Management Committee Subcommittee Chair Theodore D. Levin, P.E., Attorney Morris Polich & Purdy LLP Subcommittee Members Karen Erger, Vice President, Director of Practice Risk Management Lockton Companies, Inc. Albert Rabasca, Director of Industry Relations XL Specialty Insurance Company Homer Sandridge, Underwriting Director, Professional Liability Travelers Insurance Creighton Sebra, Attorney Morris Polich & Purdy, LLP Principles and History One of the most basic principles of tort law is that every person should be responsible for damage that they have caused. Many states have reduced this concept to statute, each stating almost word for word that “Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.”1 In many lawsuits, a plaintiff’s damages are caused by the convergence of several contributing factors originating from several different sources. To give one common example, a plaintiff homeowner alleging property damages resulting from construction defects may assert claims in one lawsuit against any of the diverse parties that contributed various scopes of work to the project, including the general contractor, subcontractors and trades that contributed to the defective work, as well as design professionals such as civil engineers, architects, and structural engineers. To put it even more bluntly, the owner files one suit against everyone in sight. In practice, however, the plaintiff more often merely sues the party or parties with whom he or she contracted, and lets the named defendant(s) do the legwork to identify and sue other parties that may also be responsible.
    [Show full text]
  • Beyond Unconscionability: the Case for Using "Knowing Assent" As the Basis for Analyzing Unbargained-For Terms in Standard Form Contracts
    Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts Edith R. Warkentinet I. INTRODUCTION People who sign standard form contracts' rarely read them.2 Coun- sel for one party (or one industry) generally prepare standard form con- tracts for repetitive use in consecutive transactions.3 The party who has t Professor of Law, Western State University College of Law, Fullerton, California. The author thanks Western State for its generous research support, Western State colleague Professor Phil Merkel for his willingness to read this on two different occasions and his terrifically helpful com- ments, Whittier Law School Professor Patricia Leary for her insightful comments, and Professor Andrea Funk for help with early drafts. 1. Friedrich Kessler, in a pioneering work on contracts of adhesion, described the origins of standard form contracts: "The development of large scale enterprise with its mass production and mass distribution made a new type of contract inevitable-the standardized mass contract. A stan- dardized contract, once its contents have been formulated by a business firm, is used in every bar- gain dealing with the same product or service .... " Friedrich Kessler, Contracts of Adhesion- Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 628, 631-32 (1943). 2. Professor Woodward offers an excellent explanation: Real assent to any given term in a form contract, including a merger clause, depends on how "rational" it is for the non-drafter (consumer and non-consumer alike) to attempt to understand what is in the form. This, in turn, is primarily a function of two observable facts: (1) the complexity and obscurity of the term in question and (2) the size of the un- derlying transaction.
    [Show full text]
  • An Empirical Analysis, 46 Ind. L. Rev. 797 (2013)
    UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 2013 Dysfunctional Contracts and the Laws and Practices That Enable Them: An Empirical Analysis, 46 Ind. L. Rev. 797 (2013) Debra Pogrund Stark John Marshall Law School, [email protected] Jessica M. Choplin Eileen Linnabery Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Consumer Protection Law Commons, Contracts Commons, Housing Law Commons, Law and Psychology Commons, and the Property Law and Real Estate Commons Recommended Citation Debra Pogrund Stark, Jessica M. Choplin & Eileen Linnabery, Dysfunctional Contracts and the Laws and Practices That Enable Them: An Empirical Analysis, 46 Ind. L. Rev. 797 (2013) https://repository.law.uic.edu/facpubs/431 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. DYSFUNCTIONAL CONTRACTS AND THE LAWS AND PRACTICES THAT ENABLE THEM: AN EMPIRICAL ANALYSIS DEBRA POGRUND STARK* DR. JESSICA M. CHOPLIN** EILEEN LINNABERY*** INTRODUCTION A review of purchase agreement forms used by condominium developers in Chicago, Illinois from 2003-2008 (the "Condo Contracts Study"') discovered that 79% contained highly unfair, one-sided remedies clauses. Specifically, as detailed in Part I, these forms provided that the buyer's sole remedy in the event of the seller's breach was the return of the buyer's own earnest money.2 This is not a meaningful remedy because it does not cover any of the losses buyers would normally be entitled to under the law due to a breach of the contract, creating-as one court put it--"heads-I-win, tails-you-lose" illusory agreements.3 In essence, these clauses constitute a waiver of the right to recover benefits of the bargain/expectation damages, consequential damages, reliance-type damages, and * Professor of Law, The John Marshall Law School.
    [Show full text]
  • Good Faith in English Law— Could a Rule Become a Principle?
    Good Faith in English Law— Could a Rule Become a Principle? Maud Piers* INTRODUCTION .......................................................................................... 124 I. ENGLISH LAW TRADITIONALLY DOES NOT ACCEPT A PRINCIPLE OF GOOD FAITH .............................................................. 130 A. Rationale ........................................................................... 130 B. Walford v. Miles and the Implied Duty of Good Faith .................................................................................. 134 C. Interfoto v. Stiletto and Fair and Open Dealing ............... 135 D. Petromec v. Petrolea and an Express Duty of Good Faith .................................................................................. 136 E. Some Critical Reflections ................................................. 138 II. ENGLISH LAW AND THE APPLICATION OF A GOOD FAITH RULE ................................................................................................. 139 A. Contextual or ‘Piecemeal’ Approach ............................... 139 B. Unfair Terms in Consumer Contracts Regulations .......... 141 C. DGFT v. First National Bank: The Autonomous Meaning of Good Faith in the Consumer Context ........... 143 D. Utmost Good Faith and Fiduciary Relationships ............. 148 E. Express Duty of Good Faith ............................................. 151 III. GOOD FAITH AS AN IMPLICIT CONCEPTUAL BASIS ......................... 152 A. Precontractual Problems: Honesty and Fair Dealing ....... 154 B. Implied
    [Show full text]
  • Standard-Terms Contracting in the Global Electronic Age: European Alternatives1
    Standard-Terms Contracting in the Global Electronic Age: European Alternatives1 James R. Maxeinert I. IN TRO DU C T ION ...................................................................................................................... 109 II. A M ERIC AN LA W ..................................................................................................... ....... 113 A. Standard Terms Generallyas a Legal Problem ............................................................. 113 B. American Approaches to Standard Terms, Especially in the U. CC ............................. 115 C. The U C.C. Reform D ebacle ........................................................................................... 123 1. ProposedArticle 2B/UCITA ...................... ........ 126 2. Absence of ComparativeLaw Inquiries.................................................................. 129 In. EU ROPEAN UN ION LA W ....................................................................................................... 131 A . O rigin in Consumer Protection ...................................................................................... 131 B . The Unfair Term s Directive ............................................................................................ 133 C. Implementation in the Member States of the Unfair Terms Directive ............................ 137 D. The Future of the Unfair Terms Directive ...................................................................... 139 IV . GER M AN LA W ........................................................................................................................
    [Show full text]
  • Contracts 8 24
    QUESTION 3 On Mayl, Buyer received the following letter: Dear Buyer: I have decided to give up my ranch and move to town. I thought that you might consider buying it from me. I will sell it to you for its current market value, $80,000. Call me by May 10. I will keep this proposal open, and will not withdraw it, until after that date. IS/ Seller The next day, Buyer mentioned to a friend, Mary, that he was considering buying the ranch. Mary responded that an acquaintance of hers, Jody, also had received an offer from Seller to purchase the ranch. Buyer immehately went home and prepared a letter of acceptance, addressed to Seller, and deposited it in the mail at 9:30 A.M. At 10:OO A.M. on May 2, Seller entered into a written agreement with Jody for the purchase of the ranch. At 2:00 P.M. on May 2, Buyer called Seller to arrange for a survey of the ranch. Seller informed Buyer that he had already sold the ranch. Upon hearing this, Buyer exclaimed, "We have a deal. I sent you an acceptance this morning by mail." QUESTION: Discuss whether there is a contract between Buyer and Seller and the basis for your conclusion. DISCUSSION FOR QUESTION 3 An offer is a manifestation of willingness to enter into a bargain so made as to justify another person in understandmg that his assent to that bargain is invited and will conclude it. Res.2d Contracts 8 24. In this case Seller's letter is an offer, since under the objective test of intent, a reasonable person in Buyer's position would understand that Seller was in fact seeking Buyer's assent to his invitation.
    [Show full text]
  • Understanding the Eight (8) Key Contract Clauses in Modern Contracts
    UNDERSTANDING THE EIGHT (8) KEY CONTRACT CLAUSES IN MODERN CONTRACTS Presented by: Founder and President of THE LAW OFFICE OF TONY M. MAY, P.C. 1850 E. SAHARA AVENUE, SUITE 206 LAS VEGAS, NEVADA 89104 Telephone: (702) 388-0404 Facsimile: (702) 830-5699 Email: [email protected] Tony M. May, Esq. 1 March 1, 2017 ABOUT THE AUTHOR A little bit about Tony M. May, Esq. ➢ B.S. Civil Engineering, UNLV 1994 ➢ Registered Professional Engineer (CA) ➢ University of Nevada Las Vegas (UNLV), graduated 1994 with B.S. Civil Engineering (Magna Cum laude) ➢ University of Iowa College of Law, graduated 2001 with Juris Doctor (with distinction) ➢ Admitted to practice law in Nevada and California ➢ Primary Practice Areas: Professional Licensing Business Formation and Litigation Construction Law Real Estate Law 2 Labor and Employment Law March 1, 2017 ABOUT THE AUTHOR A little bit about Tony M. May, Esq. (Cont.) ➢ Co-Author of the book “State-by-state Guide to Construction Contracts and Claims” ➢ Former Bar Examiner for the State Bar of Nevada ➢ Selected by Vegas, Inc., in 2012, as one of Southern Nevada’s Top Lawyers ➢ Selected by Desert Companion Magazine, in 2014, as one of Las Vegas Valley’s Top Lawyers ➢ AVVO Rating of Superb (10.0 - highest rating) ➢ Included within America’s Most Honored Professionals, 2016 3 March 1, 2017 ABOUT THE FIRM A little bit about the Law Office of Tony M. May, P.C. ➢ Our Firm takes on business owner’s problems, so that they can sleep better at night. ➢ This firm was created in 2009 so that we could provide better quality and cost effective legal services to our clients.
    [Show full text]
  • Disciplining Standard Form Contract Terms Through Online Information Flows: an Empirical Study
    \\server05\productn\N\NYU\85-5\NYU505.txt unknown Seq: 1 20-OCT-10 14:09 DISCIPLINING STANDARD FORM CONTRACT TERMS THROUGH ONLINE INFORMATION FLOWS: AN EMPIRICAL STUDY NISHANTH V. CHARI* Standard Form Contracts (SFCs) are at the heart of an ongoing debate among legal and empirical scholars about the extent to which market forces serve to discipline sellers into providing fair contract terms. Scholars have long assumed that con- sumers do not read SFCs ex ante (e.g., at the time of purchase or installation) but have generally left open the possibility that consumers might read SFCs ex post (e.g., if there is a breakdown in service or functionality). This Note examines empir- ically the extent to which online product ratings might serve as a conduit of infor- mation regarding contract terms from ex post to ex ante consumers. Comparing online product ratings from Epinions.com and Amazon.com with software license agreements graded according to a contract bias index, I find that product ratings on Amazon.com surprisingly bear a negative correlation with contract bias. That is, more highly rated products tend to come bundled with more pro-seller terms. My results suggest that while product ratings may contain information about contract terms, this information is not conveyed in a way that is useful to ex ante consumers and, accordingly, is unlikely to discipline sellers. This Note thus provides guidance for future research and policy initiatives seeking to explore ways to discipline sellers into providing fairer and more efficient contract terms. INTRODUCTION Standard form contracts (SFCs)—non-negotiated contracts presented to buyers on a take-it-or-leave-it basis—govern an enor- mous range of transactions.1 All of us have entered into these con- tracts, whether or not we realize it.
    [Show full text]
  • Standard Form Contracts: a Call for Reality
    Saint Louis University Law Journal Volume 44 Number 3 (Summer 2000) Article 15 7-20-2000 Standard Form Contracts: A Call for Reality Donald B. King Saint Louis University School of Law Follow this and additional works at: https://scholarship.law.slu.edu/lj Part of the Law Commons Recommended Citation Donald B. King, Standard Form Contracts: A Call for Reality, 44 St. Louis U. L.J. (2000). Available at: https://scholarship.law.slu.edu/lj/vol44/iss3/15 This Articles and Essays is brought to you for free and open access by Scholarship Commons. It has been accepted for inclusion in Saint Louis University Law Journal by an authorized editor of Scholarship Commons. For more information, please contact Susie Lee. SAINT LOUIS UNIVERSITY SCHOOL OF LAW STANDARD FORM CONTRACTS: A CALL FOR REALITY DONALD B. KING* Ideas are sometimes more effectively conveyed when placed in a unique communicative format. Sometimes pictures or poems (which are often pictures in words) make more of a lasting impression. This poem, using a type of haiku form in which verses are three lines with generally a five-seven-five syllable format, is offered as an alternative writing style on the subject of standard form contracts. A creative style is most fitting in this volume dedicated to Professor Eileen Searls. She has, in her many years as Law Librarian, shown creativity, both in early years when she built a strong library on a “shoe string” budget through gifts and unique trades and in later years when she made Saint Louis University Law Library one of the first twenty in the nation to be part of the international enhance cataloguing program sponsored by the Online Computer Library Center.
    [Show full text]
  • Adhesion Contracts, Bad Faith, and Economically Faulty Contracts
    ADHESION CONTRACTS, BAD FAITH, AND ECONOMICALLY FAULTY CONTRACTS J.W. Looney* and Anita K. Poole** I. Introduction............................................................................................... 177 II. Contracts of Adhesion .............................................................................. 179 III. Unconscionability ..................................................................................... 182 IV. Bad Faith .................................................................................................. 191 V. Conclusion ................................................................................................ 195 I. INTRODUCTION In his 1994 article, “Why Own the Farm if You Can Own the Farmer (and the Crop)?: Contract Production and Intellectual Property Protection of Grain Crops,”1 Professor Neil Hamilton explored the increasing use of contract production in agriculture particularly with respect to identity-preserved grains and specialty crops.2 Of course, the trend toward increased use of contracts is not limited to grain production. Poultry production is largely by contract; swine production is increasingly so.3 In his review, Hamilton included sample provisions accompanied by a thoughtful analysis of the potential legal issues raised by the increased use of such contracts.4 Among the provisions raising potential problems include those stating that the risk the crops may not be accepted by the purchaser is shifted totally to the producer; that price discounts for poor quality could be
    [Show full text]