Llewellyn Slept Here: A Short History of Sticky Contracts and Feudalism

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Title: Llewellyn Slept Here: A Short History of Sticky Contracts and Feudalism
Author: Preston, Cheryl B.; McCann, Eli
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
URI: http://hdl.handle.net/1794/12493
Date: 2012

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