Llewellyn Slept Here: A Short History of Sticky Contracts and Feudalism
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Date
2012
Authors
Preston, Cheryl B.
McCann, Eli
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
Part I of this article discusses the dangers of adhesion contracts,
particularly in the online context, where they are most susceptible to
abuse. In Part II, we discuss foundational contract principles,
specifically the transition from feudalism to freedom of contract and
the dramatic shift in the meaning of “freedom of contract” over time.
We begin Part III with a conceptual exploration of how to define an
adhesion contract. We then discuss the history of adhesion
contracting, from early posted notices and over a century of judicial
fracas about whether and when to enforce contract terms printed on
tickets, bills of lading, receipts, and so forth. We describe how a field
of law based on the freedom of the serfs and knowing choice
developed to pre-printed, non-negotiable, universal terms on a form
accepted by implication. In Part IV, we continue with the
developments of the twentieth century, marked by the promulgation
of the Uniform Commercial Code (“UCC”), Restatement (Second) of
Contracts, and consumer protection efforts of the 1960s and 1970s.
Part V describes the erosion of the unconscionability doctrine, the
need for knowing assent, notice, and other boundaries in which
adhesion contracts were contained. We discuss the consequence of the
resulting imbalance and whether the economic benefits analysis
justifies the cost. Part VI returns to feudalism and freedom of contract
to illustrate the need to rethink the enforcement of online contracts.
Description
48 pages
Keywords
adhesive online contracts
Citation
91 Or. L. Rev. 129 (2012)