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

Abstract

This article explores definitions of “adhesion” contracts and discusses their dangers, particularly online, where they are most susceptible to abuse. It begins with 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. This article proceeds through 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. The discussion then continues with the developments of the twentieth century, marked by the promulgation of the Uniform Commercial Code (“UCC”) and Restatement (Second) of Contracts, the consumer protection efforts of the 1960s and 1970s, and the erosion of the unconscionability doctrine and other boundaries in which adhesion contracts were contained. The last section considers the consequences of the resulting imbalance and the need to rethink the enforcement of online contracts. We conclude that the claim of economic benefits has been allowed to swallow the whole of contract values and that some return to balance is essential.

Keywords: Contract Theory, Cyberlaw, History of Contracts, Adhesion Contracts, Internet, Online Contracts, UCC, Consumer Protection, Freedom of Contract, Government Regulation of Market, Economic Theory, Unconscionability, Social Policy

JEL Classification: A12, C78, D11, D18, D21, D30, D43, D63, H11, H32