July 3, 2007 at 10:00 AM ET
What is the penalty for a train or airline passenger who's late? Often $50 or more. What is the penalty for a company when a train or airplane is late? Nothing. How can that be fair? It's not. But this imbalance, and many others you can probably recite by heart, can be blamed in part on the proliferation of one-sided contractual relationships called "contracts of adhesion."
A contract of adhesion sounds like something you might catch by using the wrong public toilet or dancing too closely to someone in the wrong disco. It actually can be something even worse: small print.
Every one of us finds ourselves in contracts of adhesion every day, with virtually every consumer product we buy. Contracts of adhesion are pacts between two entities that are not equal, a David and Goliath agreement, where Goliath offers the deal on take-it-or-leave-it terms. Nothing can be negotiated, so everything can be unfair. Buying a car? You have to sign a piece of paper that says you'll never sue the dealer. Won't sign the paper? You can't buy a car. And since all auto dealers require these one-sided terms, consumers don't really have a choice -- either abdicate your right to sue, or don’t drive.
Recently, I ran into trouble precisely because I tried to avoid driving. On a trip from Washington, D.C., to New York, I was late for my train. Well, by my way of thinking, I was on time. I was at the gate at precisely 8:10 a.m. for my 8:10 a.m. train, but the gate agent would not let me board. Pointing to the clear evidence of my just-in-timeliness on the digital clock above her head -- which read 8:10 -- did me no good. So I was sent off to the ticket counter to exchange my ticket, and pay my inevitable penalty.
There, I received good news and bad news. I could board another train in just a few minutes, at 8:45! But I had to pay another $29. I quickly paid and hustled back toward the gate.
But as I walked away from the ticket counter, I saw on the departures screen this cursed line: "8:45 a.m. train -- DELAYED." I had just paid $29 extra for a ticket on a train that I was told would leave in 10 minutes. That was a lie from the moment the agent made the offer. It would be nearly an hour before my train actually pulled away from the station.
Did anyone offer to refund me that $29? You laugh. But why? If I faced a penalty for being late, why not Amtrak? The answer, of course, is in the small print.
In general, contracts in the United States are only valid when they are negotiated between two equal parties. That makes sense: Only people on equal footing can engage in fair, arm's-length negotiations.
Consumer contracts don't fit this bill, however. They are almost always take-it-or-leave-it, non-negotiated contracts. When you purchase a cell phone, you agree to never join a class-action lawsuit against the cell phone provider. When you get a credit card, you agree that the terms and conditions for that card can change at any time. If you don't agree to these things, you can't get a cell phone or a credit card. That's just how it is. Take it or leave it. It's all on those pieces of paper you sign, or somewhere on the firm's Web site, in very, very small print.
It's these kids of arrangements that are called contracts of adhesion. Standard "boilerplate" language, often laden with booby traps, is a part of life now. It's easy to see how they can become one-sided fairly quickly. After all, when consumers buy software or board a train, there is no time to discuss contract terms. And, in fact, doing so wouldn't be in anyone's interests. If contract terms were negotiated separately with each business dealing, commerce would slow to a crawl. So standard terms and conditions apply in these run-of-the-mill transactions. To prevent abuses, courts have held repeatedly that contracts of adhesion fall into a special category. Despite what you might have heard, unfair provisions inserted into such contracts are not legally enforceable -– even if you signed the piece of paper. Such provisions are given the drastic legal term "unconscionable." A judge who finds a provision of a contract of adhesion to be unconscionable will void that provision.
There is a problem, however: Absent activist government intervention, everything is legal until someone sues. Long ago, companies noticed this and began pushing the boundaries on contracts of adhesion. As long as no one drags them to court, anything goes.
Since no one will ever sue over the cost of a train ticket or a few text messages, cell phone companies and train companies find themselves in an enviable legal position. They can make up whatever one-sided terms they want. For example: If you quit your cell phone company early, you'll have to pay $200. But if your cell phone company goes out of business, or their service suddenly stinks, will someone pay you $200?
Still, consumers could always read the small print, and if they don't like cell phone rules, they should just avoid cell phones, right? Even that age-old advice to read everything isn’t good enough. For example: It's nearly impossible to buy software today without agreeing to a "shrink-wrap" contract, even though you generally can't read the contract until you get the software home and open the box. Many terms of shrink-wrap contracts are unfair. They are also very hard to stop. Kind of like a train.
As it turns out, Amtrak's refund and change policy actually isn't as Draconian as airline policies. Amtrak issues refunds pretty liberally at consumer requests, minus a 10 percent refund fee. That fee is waived if a train is two hours late or more. The refund fee is also waived when riders miss connections because of late trains. Try asking an airline for those terms.
Of course, no one really wants a refund when they are halfway through a trip to Hawaii or Europe. We all just want to get where we're going for a fair price. But why does the idea of refunds for late service sound so crazy to our American ears? Particularly when we, as consumers, must so often cough up the dough for a late fee?
Five minutes late? A refund
In Spain, the remarkable high-speed Ave train makes a promise that sounds insane to us Americans. If the train is more than 5 minutes late, passengers are entitled to a full refund. Nothing unconscionable about that contract.
Not surprisingly, refunds are rarely issued.
Not long ago, I arrived at the gate for a 3:15 p.m. Ave train from Madrid to Seville at precisely 3:15 p.m. (OK, it's a bad habit, I know.) The train was moving, just beginning to creep out of the station, but the conductor still let me jump on. In the same situation in the U.S., I fear I would have just been jumped -- for extra fees.
RED TAPE WRESTLING TIPS
Would that it were so easy to simply say, “Read everything!” What good is that if you ultimately have to sign the deal anyway? Know that unfair provisions of boilerplate contracts are not enforceable, so just because you signed it doesn’t mean you have to do it. You may have to get a lawyer involved, or your state’s attorney general's office, however. Still, simply knowing your rights might make you a little more convincing when you are discussing your problem with a customer service agent.
The most disturbing element on consumer contracts of adhesion are binding mandatory arbitration clauses that force consumers to surrender their rights to sue. For more information on those, visit GiveMeBackMyRights.com.