AutoInsurance.com
January 17, 2023

What Is Adhesion Insurance?

Even if you don’t know what an adhesion contract is, chances are you’ve signed many.

Have you ever signed a contract for a credit card, car lease, or car insurance? If so, you’ve signed an adhesion contract, a “take it or leave it” agreement that states you cannot adjust the terms before signing. Technically, a car insurance policy falls under adhesion insurance — that is, it uses an adhesion contract — but legal scholars have debated for decades whether or not adhesion contracts are enforceable. Here’s what you need to know about adhesion contracts and insurance.

What Is Adhesion Insurance?

Adhesion insurance is an insurance policy that uses an adhesion contract. We’ll explain what that means below.

Adhesion Contract Definition

An adhesion contract is designed to give one party disproportionate bargaining power over the other and does not allow the weaker party to negotiate for different terms. Usually, adhesion contracts look like standardized contracts that the more powerful party uses to sell consumers goods or services.

Characteristics

Adhesion contracts are “take it or leave it,” meaning you, the consumer, can’t negotiate for more favorable terms. To buy the product or service you want, you must sign the contract as is.

Examples of Adhesion Contracts

CheckNOTE:

Your insurance agent should let you negotiate the terms of your policy. If they don’t, find a more flexible provider who can adhere to your budget and needs.

Challenging Adhesion Contracts

Although adhesion contracts may seem relatively straightforward, many legal and ethical questions arise when dealing with them.

Can You Change the Terms of an Adhesion Contract?

Typically, the weaker party cannot change the terms of an adhesion contract, which calls their fairness into question.

What Do Courts Review Adhesion Contracts For?

When the weaker party wants to get out of an adhesion contract, they may sue the more powerful party and get a court to review the contract itself. Here is what the court will look for.

  • Doctrine of reasonable expectations: The contract must have terms that a “reasonable person” would expect to be in a contract. While this is subjective, the court will reject a contract with terms that a “reasonable person” would not have accepted if they had known those terms were in the contract.
  • Doctrine of unconscionability: The language of the contract must be clear and unambiguous or conscionable. If fraud, duress, undue influence, or fine print is involved, the contract may be declared unconscionable, and therefore null and void. Courts will also consider substantive unconscionability — that is, whether or not the content of the contract is oppressive. Some factors that a court would find oppressive include inflated prices, unfair disclaimers, immoral clauses, or terms that contradict public policy.

Are Adhesion Contracts Enforceable?

Not all adhesion contracts are signed in the same way. That could affect their enforceability beyond the content they include. Even if an electronically signed contract is declared reasonable and conscionable, it could still be found unenforceable, depending on how the consumer signed the contract online.

  • Browse-wrap contracts: This type of contract requires the consumer to click through multiple hyperlinks to accept a company’s terms and conditions. Courts do not enforce these contracts because the terms are buried, so the contract falls under unconscionability.
  • Click-wrap contracts: Click-wraps appear in an immediately available pop-up window, requiring the consumer to click “I agree.” Courts enforce click-wrap contracts, unlike browse-wrap contracts.
  • Sign-in-wrap contracts: Sign-in-wraps fall somewhere in between browse-wraps and click-wraps. They include a hyperlink labeled either “terms of service” or “terms and conditions.” To accept, users must click “I agree” or “I accept” as the last step of a process before using a product or service.1 Courts enforce sign-in-wraps.

CheckDID YOU KNOW?

After nearly a century of debate, legal scholars still aren’t sure if adhesion contracts are enforceable.2 In some cases they are, and in some cases they aren’t.

Conclusion

Although online auto insurance does exist, most people today still buy car insurance over the phone or in person. The process isn’t as quick as clicking “I accept” on a few paragraphs you skimmed. Whatever and however you’re signing, it’s important to read the so-called “fine print,” especially if the contract is a click-wrap or sign-in-wrap. Remember, courts enforce these contracts, so you’ll most likely be required to adhere to the terms and conditions.

Frequently Asked Questions

Do adhesion contracts have to be in writing?

Adhesion contracts have to be in writing if any of the following is true:

  • They are real estate leases lasting longer than one year.
  • They are sales of real estate.
  • They are for over a certain dollar amount, which varies by state.
  • They include a transfer of property at the death of the party who performs the action of the contract.
  • They take more than one year to complete.
  • They will last longer than the life of the party who performs the action of the contract.

If an adhesion contract doesn’t fall into any of the above categories, it is oral and legally enforceable, given the terms are reasonable and conscionable.

Is an adhesion contract unconscionable?

An adhesion contract is considered unconscionable if it meets any of the following criteria:

  • The language is unclear or ambiguous.
  • It was signed under duress.
  • It is fraudulent.
  • It was signed under undue influence.
  • It contains fine print.
  • It contains oppressive content, such as inflated prices, immoral clauses, or unfair disclaimers.
  • It contradicts public policy.

What is an exculpatory clause?

An exculpatory clause is part of a contract that prevents a party from holding the other party liable for damages that are related to the contract.

Citations

  1. adhesion contract (contract of adhesion). Cornell Law School.
    https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion)

  2. ADHESION CONTRACTS, BAD FAITH, AND ECONOMICALLY FAULTY CONTRACTS. Drake Journal of Agricultural Law. (2016).
    https://aglawjournal.wp.drake.edu/wp-content/uploads/sites/66/2016/09/agVol04No1-Looney.pdf