D. v. Educ. Testing Serv.

87 Misc. 2d 657, 386 N.Y.S.2d 747 (Sup. Ct. 1976)



A contract of adhesion is one entered into between parties with unequal bargaining power. They are typically standard contracts which are offered by the party with strong bargaining power to the weaker party on a take it or leave it basis.


Plaintiff took the Law School Admission Test twice within four months. Defendant prepared and administered the test. Plaintiff scored 238 points higher on the second test. The discrepancy between scores prompted an investigation by defendant that disclosed striking similarities between plaintiff's answers and those of another individual. Plaintiff refused to retake the test.   Plaintiff sued to enjoin defendant from notifying law schools that it was cancelling his scores due to serious doubt as to its authenticity. Plaintiff contends that he is not bound by his agreement, because, he argues, his contract with defendant is a contract of adhesion, and therefore void. The right to cancel any test score if in its opinion there was adequate reason to question its validity was expressly reserved to itself by defendant in the bulletin, and plaintiff accepted that as well as all other conditions set forth in the bulletin when he completed his registration form. Defendant filed a motion to dismiss because the clause that reserved to defendant the right to cancel plaintiff's Law School Admission Test scores due to invalidity, and requiring a retest, was not so unfair and unreasonable that the court was justified in disregarding it.


Is plaintiff's contract with defendant void for being a contract of adhesion?




The court reviewed the record and held that the clause reserving to defendant the right to cancel plaintiff's test score if there was a question about its validity, and requiring him to take a retest in such event, did not constitute a contract of adhesion, and was not so unfair and unreasonable that the court could disregard it.  To the extent that defendant can accurately predict the aptitude of a candidate for law school by means of its test results, it performs a highly valuable service not only to the law schools but to the public as well. Moreover, the accuracy of its predictions is defendant's sole stock in trade. The less accurate as a forecaster its tests are, the less value they have to the law schools. Thus, if defendant reasonably believed that the test scores of plaintiff as scored on the April, 1974 test, did not accurately reflect his aptitude for law school, it acted within its right to protect its own image as well as its obligation to the schools who are its clients in canceling plaintiff's scores and requiring him to take a retest.

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