The nature of consent in adhesion contracts in the KCC

effective means to enlighten him about the implications of his obligations . . . on the contrary, it regards submission to prescribed terms to be one form of acceptance which amounts to real acceptance sufficient for the formation of the contract".²⁰⁸

The rules bind the adhering party by his acceptance even though it might not truly represent his contractual will.

The deficiency of the rules in protecting the adhering party’s consent can partly be ascribed to the lack of sufficient rules to tackle procedural unfairness in adhesion contracts.

This invites one to consider two issues to show the aspects of this deficiency. The first relates to the nature and quality of consent in adhesion contracts, and the second concerns the mechanism of contracting in adhesion contracts which allows the professional to abuse his economic and knowledge superiority, and draft the terms in his favour. These two issues will be addressed in the next part of this section. In the third part some proposals that could contribute to enhancing the adhering party’s consent as well as controlling the contractual behaviour of the professional are offered.

2.3.2 The nature of consent in adhesion contracts in the KCC  

Generally, acceptance can be defined as a declaration of will in which the offeree expresses his unreserved approval of an existing offer that must be communicated to the offeror in order to be effective and constitute the contract.²⁰⁹ Acceptance cannot be deemed valid unless it is expressed in a free manner, that is, free from defects of consent and expressed by a person who has capacity to contract.²¹⁰

208 Mohammad Abd Al-Aal, p. 88.  

209 Art. 43.2 provides "the acceptance must coincide with the offer"; see also, Abdulhay Hejazi, p. 623;

Ibrahim Abu Allail, p. 115 et seq.; Jamil Al-Sharqawi, The General Theory of Obligation, vol 1 (Cairo, Dar Annahdha Alarabiyah 1993) (in Arabic), p. 308 et seq.; Abd-Alrazzaq Al-Sanhuri, p. 271 et seq.

210 Art. 83.

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It follows from the principle of freedom of contract that the parties are free to regulate the content of their obligations by participating in the determination of the terms of the contract. This is the normal contracting paradigm which assumes that pre-contractual negotiations precede the conclusion of the contract in order to reach a bargain that satisfies both parties.²¹¹ Accordingly, under this paradigm the offeree’s acceptance is a true reflection of his contractual will. However, in adhesion contracts co-determination or a common contractual will per se is non-existent. This absence distinguishes adhesion contracts from negotiated contracts because the adhering party’s contractual will does not contribute to the formation of the common will of the parties.²¹² The process of concluding adhesion contracts departs from the normal paradigm of contract formation and contradicts the principle of private autonomy because of the total absence of negotiation, which, ultimately, results in an imposition of the proffering party’s contractual will.

It could be inferred from the wording of Art. 80 KCC that acceptance in adhesion contracts is distinct from acceptance in negotiated contracts. Art. 80 asserts the validity of the adhering party’s consent and indicates that although the acceptance has not been given freely, it still exists. However, the problem of acceptance in adhesion contracts is that it does not necessarily manifest the contractual will of the adhering party, especially if the contract contains unfair terms.²¹³ This is why some contract theorists have often described acceptance in adhesion contracts as "compelled acceptance" that is closer to acquiescence than a consent representing the will of the adhering party.²¹⁴ Others have qualified it as

"coerced acceptance" that is connected to economic rather than psychological factors.²¹⁵

211 Anwar Sultan, Sources of Obligations (Alexandria, Monsha’at al-Ma’aref 1996) (in Arabic), p. 66;  

Ahmad Al-Refai, The Civil Protection of the Consumer in Relation to the Content of the Contract (Cairo, Dar Alnahdha Alarabia 1994) (in Arabic), p. 48.

212 Ibrahim Abu Allail, p. 179.

213 Abd-Alrazzaq Al-Sanhuri, p. 293.

214 Ibrahim Abu Allail, p. 179.

215 Abd-Alrazzaq Al-Sanhuri, p. 93. It seems that Al-Sanhuri has been influenced by the writings of Saleilles on adhesion contracts and favoured a translation of the original French term contrat d’adhesion that carries negative connotation to mean submission (Ith’aan) as opposed to the positive/neutral meaning of the French term that means affiliation or subscription. Al-Sanhuri translation has been widely accepted by jurisprudence and courts, and his selection was later on used in all Arab civil laws; see pp. 293–294 footnotes Nos 1 and 2.

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Because the contract terms are presented as a whole package on a take-it-or-leave-it basis, the adhering party (i.e., the consumer) is coerced into accepting the professional’s terms, even though his acceptance does not reflect his true contractual will. However, this type of coercion is of an economic nature and does not vitiate the contract as physical or moral coercion does. According to Art. 156(1) of the Kuwaiti Civil Code, coercion – be it physical or moral – is deemed a defect of consent that impairs the freedom of contract by placing a constraint on the will of a person, consequently inducing him to consent. In order for coercion to vitiate the contract, it must pose a threat of grave and imminent danger to person or property; economic coercion in adhesion contracts does not present the same threat.

There is another matter that should be pointed out with respect to acceptance in adhesion contracts and that is that it does not strictly conform to the notion of correspondence between offer and acceptance. If the contract of adhesion contains unfair terms, then the adhering party reluctantly accepts them due to his lack of meaningful choice. Some authors have pointed out that the lack of choice explains the adhering parties’ disinclination to review their agreements prior to their conclusion. It is well accepted among scholars that consumers do not read their agreements before signing them and even if they do read them, it is unlikely that they would be able to understand their content.²¹⁶ Shopping around for better terms does not avail them or guarantee a better deal either because the goods or services they are seeking are supplied by a monopoly or the terms are substantially similar in the market and have been standardized by members of the same trade.²¹⁷

216 Rakoff asserted that it is well accepted among scholars that consumers do not read their agreements before signing them and even if they read them it is unlikely they would be able to understand their content, Todd D Rakoff, p. 1173. See also, Ahmad Al-Refai, p. 50; Thomas Wilhelmsson and Chris Willett, ‘Unfair Terms and Standard Form Contracts’ in Geraint Howells, Iain Ramsay and Thomas Wilhelmsson (eds), Handbook of Research on International Consumer Law (Edward Elgar 2010), p. 169; Law Commission, Second Report on Exemption Clauses (Law Com No 69), 1975 , paras 11 and 146.

217 This is either because the goods or services the adhering party is seeking are supplied by a monopoly or the members of the trade have standardized their conditions. See Kessler's discussion above.

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It could be argued that there is no exact coincidence between the proffering party’s offer and the adhering party’s acceptance if the contract contains unfair terms. The acceptance is partial and does not reflect his genuine contractual will to be bound by the unfair terms. However, from a pure legal perspective, once acceptance is expressed and communicated to the offeror, it becomes binding regardless of whether the offeree accepts or refuses the unfair terms. What matters the most is the manifestation of the contractual will even though there might be a conflict between his internal will and external will.²¹⁸

2.3.3 The mechanism used to conclude adhesion contracts  

The contracting model of contracts of adhesion is characterized by the exclusive dominance of one contractual will which dictates the terms of the agreement and its means of formation. The role of the second contractual will is merely to complement this will by abiding by its conditions so that the contract can be created. The second will is not allowed to influence the content of the contract nor discuss it. This absence of ability to negotiate compels it to accept all the contract terms, including terms that are detrimental to its interest.

The code lacks preventative measures that are aimed at controlling the stronger party’s behaviour by forbidding him from abusing his right to contract and drafting the contract to his benefit. Apart from Art. 39 KCC, which provides that "the offer must describe at least the nature of the contract and its essential conditions", there is no other provision in the code that sets general minimum standards on contract drafting.²¹⁹ The code leaves it completely up to the proffering party to determine the substance, form and

218 The rationale behind the code reliance on the external will of the contracting party to determine his   acceptance lies in considerations relating to the stability of transactions in the market and protection of the other party’s expectations and trust. For a discussion of the internal and the external will in the Kuwaiti law see Ibrahim Abu Allail, pp. 94–98; in general, see Abd-Alrazzaq Al-Sanhuri, pp. 110–114; Solaiman Murkus, pp. 143–151; Anwar Sultan, pp. 58–60.

219 With the exception of its regulation of insurance contracts in Art. 782 in which the insurance company is required to display certain terms distinctively and in intelligible manner, such as those relating to invalidation or arbitration, the code lacks any other guidance on how terms should be drafted. Regulation of style in this article proves that control of contract drafting within the code is the exception.