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Standard Form Contracts and Contract Schemas: A Preliminary Investigation of the Effects of Exculpatory Clauses on Consumers' Propensity to Sue Dennis P. Stolle, M.A., J.D.,1* and Andrew J. Slain, B.S.1* This study investigated the extent to which exculpatory clauses deter consumers from pursuing their legal rights. Undergraduate participants (N=101) were presented with two written vignettes and asked to imagine themselves as a consumer harmed by a contracted for service. Participants then read a contract and responded to questions assessing their likelihood of seeking compensation and their perceptions of the contract. The presence of exculpatory clauses, the severity of the harm, and the nature of the harm were varied. The data suggest that exculpatory clauses, if read, have a deterrent effect on propensity to seek compensation. Development of a psychological definition of contract schemas and implications for legal policy are discussed. # 1997 by John Wiley & Sons, Ltd. Behav. Sci. Law Vol. 15, 83±94 1997. No. of Figures: 0. No. of Tables: 1. No. of Refs: 27. In 1963, Stewart Macaulay asked a few empirical questions about contract law: ``What good is contract law? who uses it? when and how?'' (p. 55). Using survey and interview methodologies, Macaulay set out to answer those questions. Interestingly, Macaulay found that formal contract doctrine often takes a back seat to extra-legal conceptions of fair dealing and ``common honesty and decency'' (p. 58). Macaulay's heavy reliance on empirical data was viewed by some legal scholars as contributing to the demise of traditional contract theory and doctrine. CCC 0735±3936/97/010083±12$17.50 #1997 by John Wiley & Sons, Ltd. Behavioral Sciences and the Law, Vol. 15, 83±94 (1997) RESEARCH REPORT * Correspondence to: either author at 1University of Nebraska-Lincoln, 209 Burnett Hall, Lincoln, Nebraska 68588-0308 USA. Electronic mail may be directed to the first author at dstolle@unlgrad1.unl.edu or the second author at aslain@unlgrad1.unl.edu. Dennis P. Stolle, M.A., J.D. (expected May 1997), and Andrew J. Slain, B.A., are J.D.-Ph.D. students in the Law/Psychology Program at the University Nebraska-Lincoln. The authors are grateful to professors Mark Fondacaro, Steven Penrod, Alan Tomkins, and Robert Works for their helpful suggestions and comments, and Michelle Dreesen for her assistance in collecting and coding the data. A version of this article was presented at the biennial conference of the American Psychology-Law Society, Hilton Head, South Carolina, February, 1996. This research was made possible in part by a University of Nebraska-Lincoln Warden Research Grant awarded to the first author. This article was completed while the first author was in receipt of a National Institute of Mental Health (NIMH) Fellowship. The financial support of NIMH is gratefully acknowledged. Macaulay was even dubbed the ``Lord High Executioner of the Contract is Dead School'' (Gilmore, 1974, p. 105). Nonetheless, Macaulay's findings did not toll the death knell for contract doctrine and theory. Rather, they offered a new and more empirically accurate way of conceptualizing contracts. In the years since Macaulay's initial work, Law and Society researchers have continued to offer empirical views of contractual behavior that challenge the assumptions of traditional contract doctrine (Macaulay, 1985). Although the Law and Society research has produced findings relevant to both legal and sociolegal scholars, the research has not emphasized inquiry into the implicit psychology of contract. Furthermore, the Social Science in Law movement, which places a strong emphasis on using psychological theory to ``sharpen the legal scholar's insights'' (Monahan & Walker, 1993, p. v), has been largely absent from the empirical contract literature. Perhaps the most psychologically sophisticated studies of contractual behaviors are those studies investigating the importance of the ``psychological contract'' in employment contexts (e.g., Morrison & Robinson, in press; Robinson, in press; Robinson & Rousseau, 1994; Rousseau, 1989; Rousseau & Aquino, 1993; Schmedemann & McLean Parks, 1994). However, most of the employment studies emphasize the management implications of the psychological contract over the legal implications. Altogether there exists little more than a handful of empirical studies exploring the psycholegal dimensions of contract (e.g., Masson & Waldron, 1994). Indeed, numerous legal scholars have noted the need for sophisticated empirical research and the application of psychological theory in the context of contract law (Eisenberg, 1995; Harrison, 1994; Hasen, 1990; MacNeil, 1985; Rubin, 1995; Speidel, 1995; Stratman, 1988; White, 1988). As the domain of contract widens and shifts, it has become clear that to truly understand the nature of contract, ``empirical theories dealing with the use and abuse of contract behavior in the shadow of contract law and beyond will be required'' (Speidel, 1995, p. 255). The purpose of the present study was to provide a preliminary attempt at exploring empirical theories of contract from a psycholegal perspective. THE PRESENCE OF EXCULPATORY CLAUSES IN FORM CONTRACTS The vast majority of consumer transactions are conducted via standardized agreements presented to consumers on preprinted forms with little or no opportunity for the consumer to negotiate the terms of the agreement. The widespread use of standard form contracts is largely a result of their efficiency (Farnsworth, 1990). Because the costs involved in negotiating individual contracts would often exceed the potential profit arising from many routine transactions, standard form contracts are an essential element of modern commercial life (Farnsworth, 1990). Unfortunately, traditional contract doctrine, which contemplates a bargained-for exchange between parties of relatively equal power, often falls short of providing an adequate analytic framework for resolving disputes involving standard form contracts (Farnsworth, 1991). Form contracts seldom involve parties of equal bargaining power, they are typically offered on a take-it-or-leave-it basis, and the 84 D. P. Stolle and A. J. Slain terms embodied in such forms sometimes seek to alter the base-line legal rights of the consumer (Eisenberg, 1995). For example, it is not uncommon for form contracts to include terms that, if enforced, would relieve the drafting party of liability for their own negligence. The enforceability of such terms, commonly referred to as exculpatory clauses, is often unclear (Morant, 1995). Many jurisdictions have held these types of disclaimers unenforceable because the terms are either unconscionable, in violation of public policy, or are beyond the range of the consumer's reasonable expectations (Morant, 1995). Although the enforceability of exculpatory clauses is often suspect, they remain commonplace in consumer form contracts. Some commentators have suggested that the knowing inclusion of unenforceable disclaimers is unethical because it creates a facade of legality that may deter consumers from bringing otherwise legitimate claims against the drafting party (Kuklin, 1988; Vukowich, 1993). In response to such concerns, the discussion draft of the Model Rules of Professional Conduct contained a provision prohibiting lawyers from drafting agreements containing ``legally prohibited terms,'' or terms that ``would be held to be unconscionable as a matter of law'' (Vukowich, 1993, p. 776). However, strong objections from the legal community to a rule that would penalize the inclusion of overly broad disclaimers caused the rule to be eliminated, leaving the current Model Rules without any reference to a lawyer's responsibility as a contract drafter (Vukowich, 1993). At least part of the reasoning behind the objections was that a rule restricting the terms that a lawyer may include in a contract would infringe upon the lawyer's ability to fully protect his client's interests under a broad range of possible contingencies. The current state of the common law is such that the inclusion of exculpatory clauses is prohibited only under limited circumstances. Furthermore, the enforceability of exculpatory clauses varies greatly between jurisdictions, and as a function of the specific circumstances, leaving the consumer with little ability to predict whether any particular disclaimer clause will be enforceable (Morant, 1995). Of course, the extent to which exculpatory clauses actually deter consumers from bringing legal actions is an empirical question. If such terms do have an effect on consumers' propensity to sue, it seems likely that those effects may interact with other variables, such as the type and severity of the harm suffered by the consumer. If such terms in fact have no effect on consumers' propensity to pursue their legal rights, then some of the concern regarding the presence of such clauses in consumer form contracts may be unwarranted. CONTRACT SCHEMAS AND EXCULPATORY CLAUSES In the present context, a discussion of the effects of exculpatory language on consumer's propensity to sue is largely a discussion of ``expectations and their effects'' (Fiske & Taylor, 1991, p. 97). Such expectations may form the basis of cognitive schemasÐ``generic knowledge that holds across many particular instances'' (Fiske & Taylor, 1991, p. 98). Indeed, researchers have found support for the notion of contract schemas in the employment context (Schmedemann & McLean Parks, 1994; Morrison & Robinson, in press). Like employees, consumers Standard form contracts 85 may base some of their expectations about contractual transactions upon cognitive schemas. Schmedemann and McLean Parks suggest that contract schemas may include such attributes as legal jargon and the presence of a signature block (1994). Early empirical work on contract disclaimers suggests that consumers' contract schemas may also include a belief that terms in a written contract are generally enforceable. In 1970, Warren Mueller conducted a study to examine tenant perceptions of residential leases (1970). Mueller found that most participants in his study believed that the exculpatory clauses presented in the mock lease would be enforceable and that there would be little variation between states in terms of enforceability (1970). These beliefs were erroneous. In fact, Mueller had presented his participants with clauses unlikely to be upheld in the state where the study was conducted (1970). Furthermore, at the time the study was conducted, there was wide variability among states in the enforceability of the clauses presented. Although Mueller's study was not intended as an investigation of contract schemas, his data suggests that, at least in 1970, consumers held a general belief that provisions contained in the residential leases they sign are enforceable. However, Mueller's study suffers from several limitations. Mueller's participants responded on a dichotomous, yes/no, scale; consequently, Mueller had no measurement of the magnitude of his participants' beliefs. Furthermore, Mueller's study was conducted in a survey format with no experimental manipulations, and Mueller's participants were not presented with circumstances in which the exculpatory language would be relevant. Previous schema research suggests that increasing the costs of being wrong may decrease reliance on schemas and increase the desire to seek out new data (Fiske & Taylor, 1991). Consequently, a remaining question is whether participants placed in a relevant context in which an exculpatory clause would have particularly detrimental effects on their immediate future would abandon their contract schema and seek out new information. In this context, methods of seeking out relevant information might include talking to a representative of the drafting party or talking to a lawyer. METHODS Participants Participants were 101 undergraduate students recruited from psychology courses at a mid-western university. Most participants volunteered in exchange for class credit. The final sample consisted of 51% women and 45% men; 4% of the participants failed to indicate their gender. Participants' mean age was 21, and the median age was 19. Materials Vignettes Two separate vignettes were utilized, one involving a personal injury and the other involving damage to personal property. Both vignettes asked participants to 86 D. P. Stolle and A. J. Slain imagine themselves in the place of a consumer who was harmed as a result of a contracted for service. In the personal injury vignette, a consumer received either a small cut or a spinal injury while using exercise equipment at a health club. In the property damage vignette, a consumer's car was either scratched or stolen while in the care of an automotive repair shop. To avoid the complications of insurance, participants were asked to imagine that they did not have relevant insurance coverage. Both vignettes included a copy of the contract that the consumer signedÐa membership agreement in the health club vignette and an estimate form in the automotive repair vignette. The contract language was adopted from actual contracts, with company names and other identifying information altered. The two contracts were comparable in terms of length, organization, and complexity.1 The apparent intended legal effect of the exculpatory clause in both contracts was to relieve the drafting parties of liability even for their own negligence.2 Questionnaire Each questionnaire contained 6 manipulation check items, 12 items measured on 7-point Likert-type scales, and two open-ended questions. The Likert-type items were designed to assess the participants' self-reported likelihood of seeking compensation and reading the contract, and the participants' perceptions of the enforceability, fairness, and difficulty of the contract language. In order to control for the possibility that some effects may be a function of participants' predetermined attitudes toward car dealers and health clubs, a final Likert-type item designed to directly assess perceptions of reputability was included. The questionnaire items are reproduced in the Appendix. Design and Procedure The design was a 2 (severity: minor vs. severe) 62 (presence of exculpatory clause: present vs. not present) 62 (damage type: personal injury vs. property damage) design in which the last factor was a repeated measures variable and was used as a conceptual replication to assess generalization across legal contexts. After completing an informed consent procedure, each participant received a pack containing the two contract vignettes and two questionnaires. The order in which the vignettes appeared was randomly assigned, and the between-subjects conditions were randomly assigned. The participants were instructed to read through the Standard form contracts 87 1 Both contracts received a Flesch reading ease score of 23, indicating that the contracts contained difficult reading appropriate for readers at the 11±13th grade level (Felsenfeld & Siegel, 1981). Both contracts also received a Gunning's Fog Index rating of 24. The average word length was 1.68 syllables in the health club contract and 1.72 syllables in the automotive repair contract. The average sentence length was 40.8 words and 37.9 words respectively, and the average paragraph length was 1.7 sentences and 1.5 sentences respectively. Copies of the contracts are available from the first author upon request. 2 The following is an example of the exculpatory language: Buyer specifically agrees that Gym, its officers, employees and agents shall not be liable for any claim, demand, or cause of action of any kind whatsoever for, or on account of death, personal injury, property damage or loss of any kind resulting from or related to Member's use of the facilities or participation in any sport, exercise or activity within or without the club premises, and Buyer agrees to hold Gym harmless for same. materials and to answer the questions following each vignette. Participants were free to refer back to the vignettes, including the written contract, as they completed the questionnaires. Hypotheses Based on Mueller's finding that tenants tend to believe that the provisions in the leases they sign are enforceable, we reasoned that participants would rely on a contract schema that includes a belief that terms in a written contract are generally enforceable. Consequently, we expected to find a main effect for the presence of an exculpatory clause such that participants assigned to conditions in which an exculpatory clause was present would be less likely than participants assigned to conditions in which such a clause was not present to express a strong propensity to seek legal advice or to demand compensation on their own behalf. Based upon schema theory, we reasoned that as the cost of being wrong increased, participants' reliance on their contract schema would decrease and that participants would show a greater propensity to seek out additional information. Consequently, we expected to find a main effect for the severity of the harm such that participants assigned to conditions in which the harm is minor would be less likely than participants assigned to conditions in which the harm is severe to express a strong propensity to seek legal advice or to demand compensation on their own behalf. Furthermore, we expected to find an interaction between presence of an exculpatory clause and severity of harm such that when the harm was severe, the presence or absence of an exculpatory clause would become less relevant to participants' propensity to seek legal advice or to demand compensation on their own behalf. Finally, we expected results would generalize across the two vignettes presented to the participants. RESULTS3 Manipulation Checks Initial analyses were performed on the manipulation check items to determine whether participants had identified and understood the exculpatory clauses in both the auto-repair contract and the health club contract. For the auto-repair contract, a chi-square analysis revealed that almost two-thirds of the participants (65%) were able to correctly identify whether or not a clause was present that may prevent their recovery in a lawsuit, w2 (1, N=99)=8.49, p=0.004. Furthermore, most participants (82%) who correctly indicated that a clause was present were able to correctly 88 D. P. Stolle and A. J. Slain 3 Prior to analysis, each item was examined for accuracy of data entry, missing values, and fit between their distributions and the assumptions of multivariate analysis. Square root transformations were performed on four of the items to address their unacceptable skewness. With the transformed variables in the variable set, one case was identified through Mahalanobis distance as a multivariate outlier and was deleted from the data set. identify the paragraph containing the exculpatory clause, w2 (5, N=53)=41.98, p50.001.4 For the health club contract, a chi-square analysis again revealed that almost two-thirds of the participants (66%) were able to correctly identify whether or not a clause was present that may prevent their recovery in a lawsuit, w2 (1, N=100)=10.35, p50.001. Furthermore, an examination of the presence of clause by paragraph cross-classification table revealed that of those participants who correctly indicated a clause was present over 70% correctly identified paragraph five as containing the clause. However, twelve participants in conditions containing no relevant exculpatory language also indicated that paragraph five contained relevant exculpatory language. These false positive identifications led to a non-significant