DISCERNING THE AGREEMENT: Identifying the Terms of the Agreement

Question 1

Form Contracts are also called __________.

Answer 1

Form Contracts are also called Contracts of Adhesion

Question 2

Form Contracts challenge general notion of assent because _____________.

Answer 2

Form Contracts challenge general notion of assent because terms of the contract are not freely bargained for but there is a reason for allowing them (in the interest of efficiency/commerce)

Question 3

Form Contracts

General Rules &

Reasons

Answer 3

Rule: Forum selection clause is enforceable if it is reasonable

• Is there commercial justification?
• Commercial interest in limiting for a for suit
• Dispels confusion over where to litigate
• Pass on savings to consumer

Rule: If you sign a contract that you know to be a standardized form, you have agreed to the terms of the contract, whether you read it or not

• The fact that you did not read it is not a good enough reason for it to be unenforceable

Question 4

Form Contracts

Issues of Fairness

Answer 4

Issues of Fairness

• Negotiation?
• Does plaintiff still have his day in court?
• Whether forum selection is made in good faith
• Whether plaintiff had notice
• Assent not obtained through fraud/duress

Question 5

Form Contracts

Acceptance that Adds Additional Terms

Last Shot Rule

Answer 5

Acceptance that adds additional terms: Last Shot Rule

Rule: Where there is an acceptance that adds additional terms and then performance is started by one of the parties, the terms are governed by “who fired the last shot” –> who sent the last piece of paper