6 ms·

The nice part about making a good-faith effort to negotiate the non-compete is that if the negotiation fails, that is excellent documentation that it is a contr

The nice part about making a good-faith effort to negotiate the non-compete is that if the negotiation fails, that is excellent documentation that it is a contract of adhesion and as such unconscionable to public policy.

shostack 6y ago
But if you have to accept it to get the job, does that not render your point moot? Or is your point you could accept it then ignore it because of this good faith attempt?
- fgonzag 6y ago
  "An adhesion contract is a contract drafted by one party (usually a business with stronger bargaining power) and signed by another party (usually one with weaker bargaining power, usually a consumer in need of goods or services). The second party typically does not have the power to negotiate or modify the terms of the contract. Adhesion contracts are commonly used for matters involving insurance, leases, deeds, mortgages, automobile purchases, and other forms of consumer credit. Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability. Factoring into such decisions include the nature of the agreement, the possibility of unfair surprise, lack of notice, unequal bargaining power, and substantive unfairness. Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement." Trying to negotiate (in writing) and getting it denied makes it abundantly clear it is a contract of adhesion. This significantly weakens the contract's validity on abnormal clauses.
  - sobani 6y ago
    Wouldn't it work the other way around in this case? Since you tried to negotiate about the non-compete it should come as no surprise that there is a non-compete and you could reasonably expect it to be enforced. In fact since they signaled that they really want the non-compete, your expectation of it being enforced should go up.
    - ThrustVectoring 6y ago
      Preventing surprise and refusing to be complicit in grossly unfair and unequal negotiations are separate purposes of the courts. The surprise part is more for dealing with the contracts that are part of everyday life that are too lengthy and numerous to have everyone read, understand, and agree to everything. In that case, the courts will enforce what reasonable people would actually understand and agree to.
  - shostack 6y ago
    Very interesting, thanks for explaining.
sukilot 6y ago
Contracts of adhesion are quit conscionable. They are explicitly encouraged (but regulated) by public policy. Imagine if adhesion contracts didn't exist and you had to to have your lawyers negotiate every grocery store purchase.
- NotSammyHagar 6y ago
  can you explain that? If I don't like what the grocery store did, I can sue them, and people do win those. If they don't like me, they could sue me or block me from the premises. What's the adhesion angle here?
vagab0nd 6y ago
In practice, how do you use it for documentation? Do you somehow record the negotiation process? Like email, phone call or something?
- fgonzag 6y ago
  First of all, IANAL: An email asking how much of a salary drop it would take to drop the non compete (thus giving Amazon the chance to negotiate) and them replying with "its non-negotiable" should go quite far, the problem is you have to wait until Amazon sues you to actually see if it'll work. Your best bet would be to retain a lawyer as soon as you get an offer and tell him to do his best to get you out of the non compete, and the legal strategy will vary greatly depending on the state in which you are being hired.

shostack 6y ago

But if you have to accept it to get the job, does that not render your point moot? Or is your point you could accept it then ignore it because of this good faith attempt?

fgonzag 6y ago
"An adhesion contract is a contract drafted by one party (usually a business with stronger bargaining power) and signed by another party (usually one with weaker bargaining power, usually a consumer in need of goods or services). The second party typically does not have the power to negotiate or modify the terms of the contract. Adhesion contracts are commonly used for matters involving insurance, leases, deeds, mortgages, automobile purchases, and other forms of consumer credit. Courts carefully scrutinize adhesion contracts and sometimes void certain provisions because of the possibility of unequal bargaining power, unfairness, and unconscionability. Factoring into such decisions include the nature of the agreement, the possibility of unfair surprise, lack of notice, unequal bargaining power, and substantive unfairness. Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract: the weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement." Trying to negotiate (in writing) and getting it denied makes it abundantly clear it is a contract of adhesion. This significantly weakens the contract's validity on abnormal clauses.
- sobani 6y ago
  Wouldn't it work the other way around in this case? Since you tried to negotiate about the non-compete it should come as no surprise that there is a non-compete and you could reasonably expect it to be enforced. In fact since they signaled that they really want the non-compete, your expectation of it being enforced should go up.
  - ThrustVectoring 6y ago
    Preventing surprise and refusing to be complicit in grossly unfair and unequal negotiations are separate purposes of the courts. The surprise part is more for dealing with the contracts that are part of everyday life that are too lengthy and numerous to have everyone read, understand, and agree to everything. In that case, the courts will enforce what reasonable people would actually understand and agree to.
- shostack 6y ago
  Very interesting, thanks for explaining.

sukilot 6y ago

Contracts of adhesion are quit conscionable. They are explicitly encouraged (but regulated) by public policy. Imagine if adhesion contracts didn't exist and you had to to have your lawyers negotiate every grocery store purchase.

NotSammyHagar 6y ago
can you explain that? If I don't like what the grocery store did, I can sue them, and people do win those. If they don't like me, they could sue me or block me from the premises. What's the adhesion angle here?

vagab0nd 6y ago

In practice, how do you use it for documentation? Do you somehow record the negotiation process? Like email, phone call or something?

fgonzag 6y ago
First of all, IANAL: An email asking how much of a salary drop it would take to drop the non compete (thus giving Amazon the chance to negotiate) and them replying with "its non-negotiable" should go quite far, the problem is you have to wait until Amazon sues you to actually see if it'll work. Your best bet would be to retain a lawyer as soon as you get an offer and tell him to do his best to get you out of the non compete, and the legal strategy will vary greatly depending on the state in which you are being hired.