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TIM KAYE
II. A Flawed Dichotomy
The (F)law in Practice
Let us begin by dispelling the notion that contracts and torts are distin-
guished from each other by whether or not they implicate the voluntary
choice of the participants. Standard-form contracts are probably the most
obvious case of imposed obligations in contracts. My point here is not that
standard-form contracts are inherently malevolent, for that would simply in-
volve my substituting one ideology for another. It is simply that, whether
benevolent (and so essentially just a time- and cost-saving measure), or
malevolent (as with so-called “contracts of adhesion”), the person who con-
tracts on the terms set out in another party’s standard-form almost never
even reads those terms, but just signs in the appropriate space. Even with
the benevolent type of standard-form contract, all that this party is really
choosing is the identity of the other party. In both benevolent standard-
form contracts and contracts of adhesion, what we might call the “oper-
ative” contract provisions remain identical no matter who that other party
may be.
Moreover, it is quite possible for a person to be compelled to enter into
a contract, on terms not of his or her choosing, because of an obligation
to a third party. Suppose, for example, that I wish to buy a house in a
Tampa Bay, Florida. In order to do so, I need to obtain a mortgage. The
bank providing that mortgage insists, in accordance with standard practice,
that I obtain homeowner’s insurance to cover the value of the house as a
condition of the bank’s advancing me the mortgage. But this is hurricane
season, and the house is in a flood zone. As a result, no private insurance
company will offer me coverage. So what can I do? There is only one thing
I can do: obtain insurance with Citizen’s, the state insurer of last resort. Yet
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