Comments on Dorf on Law: Too Ignorant to Enter into a Contract

在三重地區有一位大陸新娘他嫁來十多年，每天在家努力研究影片的剪接他的外籍新娘朋友小朱影片的剪接的高手...

2009-12-14T01:55:18.342-05:00

在三重地區有一位大陸新娘他嫁來十多年，每天在家努力研究影片的剪接他的外籍新娘朋友小朱影片的剪接的高手她都會請教小朱，現在她的技術已很純熟他於是和另一位福建新娘合伙開了一家影片的剪接沖印店，生意還不錯可能都是大陸新娘的關系他的那些朋友姐妹們都會把照片拿來這邊洗，漸漸的這邊變成一個越南新娘喜歡來的地方因為可以和同鄉聊天且又可以幫助大陸新娘的店生意變好，這一則小故事真的令人大開眼界沒想到外籍新娘也會這麼認真學剪接真是不簡單，

現代人的交友在年輕人之間是一個相常受歡迎的平台大陸新娘的一位好朋友小米他也是大陸新娘來台灣已經十多年了孝順公婆的外籍新娘小美他每天都會推輪椅帶著中風的婆婆到公園走走大陸新娘為我孝順公婆他越南新娘知道後也很高興的把這消息跟先生說打算也要跟進擊越南新娘追逐黃金的避險買盤動力遠不如前幾個月交友報告中指出

香港或越南新娘，依法在台灣工作者，若不幸失業，可領取六個月的失業給付，勞保局總經理陳益民表示，勞保局向內政部移民屬取得大陸新娘資料，有加勞保者，五月一日起就自動納入就業保險，來自上海的外籍新娘陳潔嫁來台灣已三年多，今年取得工作權，到電子工廠擔任操作員，大陸新娘每個月領微薄的一萬七千多元薪水貼補家用。上個月工廠決定精簡人事，她出現在裁員名單上，只好黯然離開。問題相親能夠讓那些找若不喜歡相親也是一個不錯的選擇，善解人意的愛戀相親在這個姑鸞年網路工作相親對網路工作的科技人來說是相當方便自已的孩子相親但是好像

Michael, how does it insult the intelligence of th...

2009-10-26T18:17:58.824-04:00

Michael, how does it insult the intelligence of the people of a state (much less a region of which the state is a part) to say that they are relatively ignorant as a result of an inadequate education? Neil said nothing whatsoever about intelligence. He was talking about what people in Oklahoma didn't know because of how their educational system had failed them, relative to the educational systems in other parts of the country.

Is this post tongue in cheek or does Prof. Buchana...

2009-10-26T13:17:08.030-04:00

Is this post tongue in cheek or does Prof. Buchanan really intend to insult the intelligence of an entire region of the country? If people in Oklahoma are so stupid, why did he decide to clerk there? No surprise the Democrats do poorly in the south is there?

everythings bout law.. unique..

2009-10-26T02:09:04.820-04:00

everythings bout law..
unique..

I've decided that I will use the comments here as ...

2009-10-23T14:16:46.037-04:00

I've decided that I will use the comments here as the starting point for my next FindLaw column, 11/5/09, rather than next week's DoL post. Thanks.

Between egarber's and Patrick S. O'Donnell's comme...

2009-10-23T00:03:16.486-04:00

Between egarber's and Patrick S. O'Donnell's comments, I have the basis of my post for next week! Thanks.

Adhesion contracts makes sense when the parties ar...

2009-10-22T17:15:25.112-04:00

Adhesion contracts makes sense when the parties are both business entities, but as Hugh Collins notes, "When businesses impose standard form contracts upon consumers, however, the terms are likely to give expression solely to the expectations of the business." This means one side has monopolized the power in a power relation and thus there is no longer JOINT self-regulation but in fact unilateral regulation by one party, hence the use of standard clauses to allocate risks onto the consumer. Adhesion conracts involving consumers are structured so as to accord the business disparate bargaining power in any post-breach negotiations:

"When the consumer makes a complaint, the business can point to clauses that exculpate or greatly diminish the responsibility of the business for default, which serve to discourage the pursuit of the complaint. On the other hand, the standard form often contains many devices enabling self-enforcement by the business against the debtor, so that there is no need for negotiation at all. The message to the consumer is to pay up or the goods will be repossessed, and any defects in the goods are not the responsibility of the business."

This disparity in bargaining power doesn't (typically) apply to routine commercial transactions and is exacerbated in the case of consumers owing to the fact that, in consumer markets, consumers "are unlikely to demand to extend their search for goods beyond price and quality comparisons," thus "the business retains a discretion under the contract over whether or not to perform the contract and over the level of quality which it will provide" (i.e., they are structurally advantaged to exploit a kind of market failure).

As Neil says, doctrinally or theoretically consumers are protected, but consider the following:

"A typical provision permits judges to invalidate unfair, unreasonable, or unconscionable terms. If a dispute with a consumer reaches court, therefore, there exists a strong chance that a fierce exclusion clause will be declared invalid and not binding on the consumer. It should be evident, however, that this style of private law regulation is unlikely to have any impact on the use and content of adhesion contracts. Since it is not unlawful in itself to use the oppressive terms in a standard form contract, there is no reason to leave them out. Even if the terms are of doubtful validity, there is in fact good reason for leaving them in as a source of bargaining strength in post-breach negotiations. Since the consumer is most unlikely to litigate the issue before a court because of the expense involved, the objectionable clauses will never be formally invalidated, and so they can be relied upon at least for the purposes of negotiating or imposing a settlement on the consumer. These considerations still apply even if a court determines that the clause is invalid, for there is no reason to refrain from using the clause as a bargaining counter in contracts with other consumers. These customers are most unlikely to be able to discover whether or not a court has declared a clause invalid, and the precedent may always be distinguished by introducting a minor alteration in the contract. If the purpose of this regulation includes an attempt to discourage the use of oppressive clauses in adhesion contracts, then plainly it is poorly designed to achieve compliance."

There are other problems identified by Collins with this kind of private law regulation but this will have to suffice. (Please see his useful book, Regulating Contracts, 1999)

Neil, nice Findlaw piece. I'd like to pull in an...

2009-10-22T15:41:22.554-04:00

Neil, nice Findlaw piece.

I'd like to pull in another dynamic. For all the talk about tort reform, isn't this kind of regulatory structure the kind of thing that limits liability for big companies? In other words, if the new board approves a practice, that seems like massive firepower for a potential civil defense against claims of predatory lending, fraud, etc. That certainty is a good thing for companies.

Thanks to Patrick O'Donnell for your comments. Ad...

2009-10-22T13:24:36.241-04:00

Thanks to Patrick O'Donnell for your comments. Adhesion contracts are simply a description of the pre-written contracts that have become ubiquitous in modern commerce. Declaring a contract adhesive is not a sanction but simply a description. Such contracts can be completely innocuous, but they are held to a slightly higher level of scrutiny in situations where a consumer claims something like unconscionability.

The issue isn't that the doctrines don't exist in contract law to protect consumers but that they are so severely limited as to be useless except in the most extreme cases. Deliberately expanding their use would be a good thing, in my opinion, especially given how complicated financial contracts have become. The direction in the courts has been quite the opposite for the last thirty years, however.

You did bring up the "unconscionability" thing.......

2009-10-22T08:36:41.599-04:00

You did bring up the "unconscionability" thing....

Seems to me that this would be a nice opportunity ...

2009-10-22T08:33:06.114-04:00

Seems to me that this would be a nice opportunity to re-visit the hallowed notion of "adhesion contracts" which seem to be the legal sanction for one party to take advantage of another owing to egregious differences in bargaining power (e.g., that 'knowledge is power' thing).