Take it or Leave it

Take it or Leave it


The elaboration that Rogers makes around the argument that I am bound by the unalterable terms of the Rogers Wireless Agreement on August 14, 2004 are again somewhat odd as they tend to confirm the very defence that the ordinary consumer has against standard form contracts.


One of the very first things law students learn in their very first year of law school is that standard form contracts are of questionable enforceability in a court of law. They are very often not worth the paper they are written on.


The reason why standard form contracts, particularly consumer contracts, are found by courts to have unenforceable clauses is that the contracts are typically in small print, in undecipherable legalese, and they are non-negotiable. The consumer is given two choices: take it or leave it.


The fact that the contract cannot be bargained for, on any of its terms, tends to make it easier to plead in court that the asymmetry of bargaining power on the part of the corporation was so overwhelming that it would be unfair to enforce the strict terms of the contract.


It’s a bit odd that Rogers would draw attention to one of the core vulnerabilities of its own standard form contract – that it is utterly non-negotiable.


Rogers pleads that


“The [Wireless Service] Agreements, which the Plaintiff executed [i.e. signed] specifically preclude any modification of their terms as follows:

 “You agree that this agreement cannot be changed by you. No oral representation of any sales representative, agent, officer or employee of ours shall vary the terms of this agreement.”

The complete and utter power that Rogers fully concedes to possessing regarding the contract is an argument that the consumer raises to argue that the terms of the contract are unenforceable on the grounds of unconscionability.


It’s odd that Rogers is underlining the very thing that makes its contract vulnerable in a court of law.