Contractual Choice of Law in Contracts of Adhesion and Party Autonomy

40 Pages Posted: 1 Oct 2007 Last revised: 21 Dec 2009

Mo Zhang

Temple University - James E. Beasley School of Law

Abstract

Contractual choice of Law in contracts of adhesion is an issue that poses great challenge to the conflict of law theory. The issue is also practically important because the increasing use of form contracts in the traditional "paper world", and particularly in the Internet based business transactions. In the US, the enforceability of contracts of adhesion remains unsettled and the choice of law question in the contracts as such is left unanswered. The article analyzes the nature of contracts of adhesion as opposed to the party autonomy principle in contractual choice of law, and argues that contracts of adhesion do not conform to the basic notion of party autonomy. The article suggests that the choice of law clause in contracts of adhesion shall not take effect unless adherents meaningfully agree. The article proposes a "second chance" approach for contractual choice of law in contracts of adhesion. The approach is intended to set a general rule that a choice of law clause in an adhesive contract shall not be deemed enforceable prior to affirmation of the true assent of adherent.

Keywords: Conflict of Law, Contractual Choice of Law, Contracts of Adhesion

Suggested Citation

Zhang, Mo, Contractual Choice of Law in Contracts of Adhesion and Party Autonomy. Akron Law Review, Vol. 41, 2007; Temple University Legal Studies Research Paper No. 2007-25. Available at SSRN: https://ssrn.com/abstract=1017841

Mo Zhang (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Paper statistics

Downloads
660
Rank
30,037
Abstract Views
2,497