TOOLS OF STRUCTURAL VIOLENCE: THE STANDARD CONTRACT PART II

In my last post I broached the idea that the standard contract could be used as a tool of structural violence. I have since had some time to look more deeply into the subject. I was excited to find evidence that supports my premise and, unfortunately, I was not at all surprised by this.

While perusing notes from a negotiation class I just completed, I found a bolded term that I obviously wanted to explore in more detail than was provided in class. The term is contract of adhesion. This basically means that one party in a transaction is forced to sign a contract without any ability or right to change the terms. In plain English, you can take it or leave it.

Of course, I started my research with a Wikipedia search. Regardless of the criticisms of Wikipedia I have heard (and there have been many), I have found that it can give you both a good working definition and provide clues as to where you can find peer reviewed research to get your personal research started in earnest. I was not let down at all with the results of this search.

Wikipedia pointed to five salient issues that would support the premise that standard contracts could be used as tools of structural violence:

  1. Standard form contracts are rarely read
  2. Access to the full terms may be difficult or impossible before acceptance
  3. Boilerplate terms are not salient
  4. There may be social pressure to sign
  5. Standard form contracts may exploit unequal power relations

I have written before about the standard form contracts not being read (point 1) on a couple of occasions (here and here). I have found further commentary on the phenomena via the web; Seth Stevenson of Slate gives a nice rundown of the pros and cons of the end-user licensing agreements (EULA)(you know, those things we never read).

That boilerplate term contracts may not be salient (point  3) was one focus of the workshop I discussed in my last post. Michael Powell of the American Arbitration Association commented that corporate attorneys may start with standard boilerplate as they design a contract, but added that there is a tendency for those attorneys to keep adding additional language, both boilerplate and proprietary, to cover any possible circumstance regardless of its probability. He posited that this was a problem for the companies that use these contracts because it creates a contract that can be incoherent and unnecessarily complicated. He also called this an opportunity for a properly trained consultant to go in and fix these problems, for a fee of course.

Points 2, 4, and 5 can be demonstrated in something that happened to me. I was on my first day of a new job and was in the office of one of the HR people. After a presentation about the organization I was given a large stack of documents to sign. I started reading the documents before me and after a minute the HR person asked me what I was doing. I replied that I was reading the documents. The HR person told me I didn’t have time to read them all because they had other people to take care of after me. I replied that I didn’t want to sign all these documents without reading them. The HR person then asked me if I wanted the job or not.

I signed the documents, feeling angry about it at the time. I felt it was unfair, but didn’t have a lot of say in what happened. Now I realize that I signed several contracts of adhesion. I had no power over the terms and had to sign the contracts if I wanted to take the job, which I did. Along the way I was denied access to the full terms of the agreement (point 2), put under intense pressure to sign the contracts (point 4), and was the victim of an asymmetrical power relationship (point 5).

Does this prove that contracts are tools of structural violence? Absolutely not. No good researcher makes a claim based on a Wikipedia article. What I have is a good set of key terms to use to find peer reviewed research that will form the basis of a factual claim. What I have is a good start and some confidence that I may be on the right track.

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