Does the US have a rule about onerous contract terms in the fine print? In the UK there is a legal precedent that unusual or onerous contract terms must be correspondingly prominent; you can't hide them in the fine print of a standard contract. If you try the other party can claim that they never knew about those terms and hence never agreed to them. This is based on the common law principle that a contract is a &quot;meeting of minds&quot;, and in such a case there was no common understanding of what the contract contained. The USA is a common law jurisdiction with the same basic theory of contracts. Does US contract law have a similar principle for unusual or onerous terms in a contract?
For paper contracts there are even statutory &quot;prominence&quot; requirements, generally applicable to &quot;disclaimers&quot;: see this Q&amp;A (using local talent), based on UCC §2-316. In a given jurisdiction there will be various contexts where a disclaimer must be made prominently such as in Washington this one regulating life insurance contracts that there must be a &quot;prominent statement that the contract does not provide cash surrender values if such is the case&quot;. &quot;Onerous contract&quot; is taken to be an accounting term about costing too much to comply, and I assume (from recent context) that you don't mean that specialized usage. This article goes through US law in terms of website agreements, which are one kind of &quot;fine print&quot;: the points here apply to paper contracts as well. If the terms are not physically in &quot;the agreement&quot;, they they must be incorporated by reference, thus &quot;some reference must be in the contract that the customer actually sees it&quot;, see E.J. Rogers, Inc. v. UPS, 338 F. Supp. 2d 935. Various cases address the amount of notice required (Manasher v. NECC: must &quot;indicate a clear intent that the provisions would be considered part of the agreement&quot;). International Star Registry of Illinois v. Omnipoint Marketing clearly established that a signed paper contract can refer to online terms (url provided, a &quot;have read and agree...&quot; statement above the physical signature). For clickwrap contracts, see Hugger-Mugger, L.L.C. v. NetSuite – clicking agree means that you are held to have read and understood the terms, as long as the terms meet the standard for incorporation by reference. The central requirement of notice is that there has to be a clear indication that the external document is incorporated into the contract, and the party must be clearly told where that document is. While a seller / service-provider can change the terms of a contract, those changes do not automatically apply to an existing party to an earlier version – Douglas v. US District Court, 495 F.3d 1062 and references therein – unless the customer is actively notified of a change in terms. As far as I know, there is no case law establishing a computational specification of what it means to &quot;notify&quot; a customer of incorporated terms. There are plenty of terrible web pages where links go nowhere (can fine print be in invisible ink?). One might assume that a diligent customer would trace all of the relevant documents to see what they agreed to if they are told that they must agree to these non-existent terms. One might also assume that since there is nothing there, agreeing to a null document adds nothing to the contract, and the vendor bears the responsibility for making the terms actually findable, though they bear no responsibility for making sure the customer looked.
So my understanding is that the phrase "common law" can refer to either the concept of laws established by court precedent or it can refer to a specific body of laws that have been established that way. Yes. Should I just be inferring that from context? Yes. Is there a single body of "common law"? No. Are there distinct bodies of "U.K. common law" and "U.S. common law" for example? Yes, furthermore there is different common law in England/Wales, Northern Ireland &amp; Scotland and each state of the US. Further, Scotland and Louisiana are not straightforward common law jurisdictions but rather a blend of common and civil law. If so, how are they related? They are related in that they all: have a common source, middle English common law evolve in the same way - judges interpreting the current common law and the statutes of the legislature follow an appeals system through higher levels of courts. They do not all go in the same direction though. Do judges in common law countries cite court decisions in other common law countries? Sometimes; it depends on the "distance" of the other jurisdiction. A judge in New South Wales is quite likely to consider how judges in Queensland and Victoria have considered similar laws, less likely to look at the UK and Canada and extremely unlikely to look at the USA. This has a lot to do with how far back it is since the "last common ancestor" of the law; the longer the corpus of law has been separated the more likely that the principles have diverged, partly this is cultural drift but mostly this is differences in statutes that actively modify the common law. Usually, jurisdictions within the same country are quite close to each other; partly due to common culture but often because of a genuine effort to "harmonise" laws across borders. There are occasions, however, where legislatures "steal" laws from other jurisdictions, in which case they often look to each other for early development of common law on those laws. For example, the Alberta (Canada) Builder's Lien Act 2000 and the NSW (Australia) Building and Construction Industry Security of Payment Act 1999 both address the same "wrong" and both had a common and parallel genesis pre-enactment; early cases in each jurisdiction were watched by the other.
No, a penalty clause is illegal, end of story. A contract could include a &quot;liquidated damages&quot; clause – this is how late fees are legal – that if you breach the contract in a certain way, you will compensate the company for the damage that you have done (bookkeeping, interest on money owed) in a standard and reasonable manner. Incidentally, what you describe is slavery, which is illegal throughout the US. The closest you could get is if the company offers a benefit for staying with the company for some period of time, then the employee might forego that benefit if they don't fulfill that aspect of the contract.
Should I ask for a contract, when asking for the money? The proper time to define or formalize a contract is not when asking for the money, but when agreeing what tasks are expected from you and how much you will charge therefor. That way both parties will be clear on what is expected from each other. And if a dispute is brought to court, the fact-finder will have an objective document from which to identify who breached the contract. It is always recommendable that the contract be self-contained, and that relevant interactions between the parties be in writing or memorialized in some way that leaves no room for unverifiable allegations of the type &quot;I said, he said&quot;.
This paper describes a website created to test the hypothesis that nobody bothers to read the TOS, and it contained a privacy clause saying that &quot;we may share everything, and a clause that by agreeing to these Terms of Service, and in exchange for service, all users of this site agree to immediately assign their first-born child to NameDrop, Inc. If the user does not yet have children, this agreement will be enforceable until the year 2050. All individuals assigned to NameDrop automatically become the property of NameDrop, Inc. No exceptions. Since this was not a real webpage, there was no attempt to enforce. TOS is just another kind of contract, so the question is which kinds of contract conditions are enforceable and which kinds are not. It depends on whose laws you are operating under, which explains the use of expressions like &quot;void where prohibited by law&quot;. There are innumerable conditions that could be included in a contract which are unenforceable. A contract requiring a person to commit a crime is unenforceable. Many jurisdictions have laws prohibiting a person from waiving certain rights, for example you cannot sign away your right to be represented by legal counsel in a dispute. There are related &quot;unfair / deceptive&quot; practices laws, which might include meta-conditions that any clause disclaiming liability must be prominently displayed. These are terms that a reasonable person would clearly know in advance are illegal and unenforceable. There is also a concept of &quot;unconscionability&quot;, a finding that a certain condition favors the business to the point of &quot;shocking the conscience&quot;, which may take a deeper legal analysis to evaluate. A requirement to litigate small disputes in California might be deemed unconscionable for a customer in an East Coast state, but it might not be. A typical characterization of an unconscionable contract is one that &quot;leaves one party with no real, meaningful choice and is unreasonably advantageous to the other party&quot;, especially when due to asymmetrical negotiation power. For example, Ellis v. McKinnon , 18 Cal. App. 4th 1796 (employment contract for a salesman, commissions were forfeit if company had not received payment from the customer by the termination of employment). The main case law in the US in this area is Williams v. Walker-Thomas Furniture, 350 F.2d 445, where a customer bought furniture on credit, with a clause allowing repossession of all of the furniture in case of default by the customer. The doctrine is encoded in UCC 2-302. However, &quot;unconscionable&quot; does not mean &quot;I don't like it&quot;. In lieu of statutory price controls, a customer probably cannot avoid paying an agreed on exorbitant price for a product ($100 for a dozen rolls of toilet paper). Here is a bit more legal analysis of unconscionability, which focuses on three factors: one-sidedness, oppressiveness, and likeliness to result in unfair surprise.
The contract is enforceable No one is in any doubt that the parties to the contract are you and Smith Homes and everyone knows that Smith Homes means Smith Homes LLC. The written document is only evidence of the contract, the contract is the entire commercial relationship. Contracts are not invalid because they have typos or minor irregularities- otherwise virtually no written one would be. The law can be very pragmatic sometimes.
is contract text itself subject to copyright? What are my options? It largely depends on the originality of your contract. C &amp; J Management Corp. v. Anderson, 707 F.Supp.2d 858, 862 (2009) points to multiple references against preclusion of "a copyrightable interest in a contract". But you would need to prove that your competitor copied "original elements" of your contract including "a minimum degree of creativity and originality required to support a valid copyright". See Donald v. Uarco Business Forms, 478 F.2d 764, 766 (1973). Your post provides no information that would help identifying or ruling out this issue in your matter. Without realizing, you might have paid dearly for boilerplate language that your lawyer copied from somewhere else. Indeed, there is so much regurgitation and copy/pasting in the legal "profession" (judges included, as is notorious in judicial opinions they release and in the similarities --verbatim-- among the procedure law of many, many U.S. jurisdictions). That regurgitation is not bad in and of itself, though, since what matters is the expeditious administration of justice and the protection of your rights, rather than obtaining creative expressions authored by some lawyer. You might end up wasting valuable energy and money if you went after the competitor for something like this without first assessing the extent of originality in your contract. Focus instead on the much more detrimental fact that your competitor "plays dirty in general".
Absolutely it is. If a contract contains void provisions then, in general, the contract itself is void for uncertainty. A void contract never existed so you couldn't use this to terminate a contract because there never was a contract. Contracts of employment are typically heavily regulated and the regulations may tell you to deal with void provisions in a different way. However, for common law contracts a void provision can sink the whole thing.