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Contra proferentem


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If a credit card company resides in another state than yours is their contract enforceable to export into your state?

Contra proferentem is a doctrine of contractual interpretation which provides that an ambiguous term will be construed against the party that imposed its inclusion in the contract – or, more accurately, against the interests of the party who imposed it.[1] The interpretation will therefore favor the party that did not insist on its inclusion.

For a contract to be treated as a contract of adhesion, it must be presented on a standard form on a "take it or leave it" basis, and give one party no ability to negotiate because of their unequal bargaining position. The special scrutiny given to contracts of adhesion can be performed in a number of ways:

* If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract.

The case of Werner v. Norwest Bank, 499 N.W.2d 138 (S.D. 1993), controls this issue. The existence of a valid express contract is a question of law to be determined by the court, not a jury; an express contract exists only when the parties mutually express an intent to be bound by specific terms and conditions. Id. Where there is no showing that the terms of an alleged oral agreement were ever settled or agreed upon, it is proper for the trial court to make a summary finding against the existence of a contract. Id. Thus, in Werner, "[w]here there was no understanding as to the exact amount of money, interest rate, time and method of repayment, and no exchange of documents, no enforceable contract can be said to exist." Id. at 142 (emphasis added by the Court).” By their own admission, the bank failed to exchange any documents with Defendant. Therefore, the written agreement required under SD law supporting a higher interest rate does not exist.

Edited by My~Cuz~n~Vinny~
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