Introduction to 2011 Sullivan Lecture Symposium: Boilerplate Terms in Context

• Author: Jeffrey T. Ferriell
• Position: Professor of Law, Capital University Law School. B.S., Ohio State University, 1975; J.D., Santa Clara University School of Law, 1978; LL.M, University of Illinois College of Law, 1983
• Pages: 605-616

INTRODUCTION TO 2011 SULLIVAN LECTURE

SYMPOSIUM: BOILERPLATE TERMS IN CONTEXT

JEFFREY T. FERRIELL*

It has been nearly seventy years since Fritz Kessler popularized the use

of the term “adhesion contract,” which he imported to the United States

from France.1 It was at this time that Kessler wakened American scholars

to the absence of anything approximating the type of consent on which our

rules of contract formation were originally based.2

Traditional contract rules of the type found in Langdell’s first law

school casebook developed in an era when most deals were struck by

parties who had roughly equal bargaining power.3 They were under very

little, if any, compulsion to enter into a deal with one another at all, much

less under any compulsion to submit to specific terms. Having entered into

their agreement at arm’s length and with a relative degree of sophistication

about the subject matter of their transaction, their assent was usually well-

informed and thoroughly voluntary.4

Since then, of course, things have changed. We commonly enter into a

wide array of complex transactions for many of the goods and services we

purchase and rely on in our daily lives.5 These transactions include

purchasing life, health, and automobile insurance; entering into credit card,

debit card, automobile loan, home loan, and other financial services

contracts; and entering into agreements for extraordinarily complex

software licenses, cell phone service, airline tickets, and online consumer

Copyright © 2012, Jeffrey T. Ferriell.

* Professor of Law, Capital University Law School. B.S., Ohio State University, 1975;

J.D., Santa Clara University School of Law, 1978; LL.M, University of Illinois College of

Law, 1983. Thanks to Capital University Law School Professors Brad Smith and Dan

Kobil, and the editors of the Capital University Law Review, for providing me with the

opportunity to offer this brief introduction to Professor Radin’s article and Professor Gold’s

response.

1 Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of

Contract, 43 COLUM. L. REV. 629, 631–32 (1943).

2 Id.

3 Id. at 629–31.

4 Id. at 630.

5 Robert A. Hillman & Jeffrey J. Rachlinski, Standard-Form Contracting in the

Electronic Age, 77 N.Y.U. L. REV. 429, 435 (2002).