Adhesion Theory in California: A Suggested Redefinition and its Application to Banking
![handle is hein.journals/lla11 and id is 311 raw text is: ADHESION THEORY IN CALIFORNIA:
A SUGGESTED REDEFINITION AND
ITS APPLICATION TO BANKING
by Richard P. Sybert*
I. INTRODUCTION
Form contracts which are offered to the general public on a mass basis
play an important part in the modern American economy. It is in fact
seldom that a classic dickered contract appears today in a consumer
setting. From taking a bus to an automobile showroom, to agreeing to
purchase a car, to paying for it by check, to buying gas for it with a credit
card, to parking it in a lot, the individual's contractual relations and the
incidents of daily life are defined by standardized agreements presented
to him or her as faits accomplis.1
Through advance knowledge on the part. of the enterprise offering the
contract that its relationship with each individual consumer or offeree
will be uniform, standard and fixed, the device of form contracts in-
troduces a degree of efficiency, simplicity, and stability.2 When such
contracts are used widely, the savings in cost and energy can be substan-
tial.3 An additional benefit is that the goods and services which are
covered by these contracts are put within the reach of the general public,
whose sheer size might prohibit widespread distribution if the necessary
* A.B., 1973 (University of California, Berkeley); J.D., 1977 (Harvard University).
Member, State Bar of Hawaii. The author has complete and sole responsibility for this
article, and would like to thank particularly Ms. Carole Law for her work and suggestions,
and also Mr. Robert A. Susk, as well as the Honorable Martin Pence, Senior U.S. Judge,
District of Hawaii, for his encouragement.
1. Neal v. State Farm Ins. Cos., 188 Cal. App. 2d 690, 694, 10 Cal. Rptr. 781,784 (1961)
(quoting FRIEDMANN, LAW AND SOCIAL CHANGE IN CONTEMPORARY BRITAIN 45 (1951)); C
& J Fertilizer, Inc. v. Allied Mut. Ins. Co., 227 N.W.2d 169, 173 (Iowa 1975) (quoting
Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84
HARV. L. REV. 529 (1971) [hereinafter cited as Slawson, Standard Form Contracts)).
2. Hurd & Bush, Unconscionability: A Matter of Conscience for California Consumers,
25 HASTINGS L.J. 1, 9 n.38 (1973) [hereinafter cited as Hurd & Bush]; Comment,
Contracts of Adhesion under California Law, I U.S.F. L. REV. 306, 307 (1967) [hereinaf-
ter cited as Comment, Contracts of Adhesion] (quoting H. JONES, E. FARNSWORTH, & W.
YOUNG, CASES AND MATERIALS ON CONTRACTS 150 (1965)); Llewellyn, Book Review, 52
HARV. L. REV. 700, 701 (1939) [hereinafter cited as Llewellyn].
3. Llewellyn, supra note 2, at 701-02.](ViewImageLocal?handle=hein.journals/lla11&div=21&collection=&method=preview&ext=.png&size=3)
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Adhesion Theory in California: A Suggested Redefinition and its Application to Banking
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