Fairfield Leasing Corporation v. Techni-Graphics, Inc

In Fairfield Leasing Corporation v. Techni-Graphics, Inc., 256 N.J. Super. 538, 607 A.2d 703 (Law Div.1992), the court refused to apply a New York law provision on the issue of jury waiver. The court at page 544, 607 A.2d 703 quoted Professor Robert A. Leflar: "Even an express provision in a contract stating an intent that it be governed by the laws of a named state may be held not to express the real intent of the parties. Such a stated intent should be disregarded when it is contained in an adhesion contract such as the fine print in an insurance policy prepared by one of the parties primarily for his own advantage and inserted without the actual knowledge of the other party. At least this is true if the court is looking for the actual intent, if any, of both the parties. If the stated intent is a purposeful statement joined in by both parties, so that they can know in advance what law will govern their transaction and effectuate it, there is much good sense in a rule which makes such a genuine mutual intent controlling. This good sense is, however, limited to the cases where the stated intent is a real one. Leflar, American Conflicts Law, p. 302 (3rd ed.1977). To deviate from the law as described by Professor Leflar would be in violation of the public policy of this State as that concept has been articulated in Henningsen v. Bloomsfield Motors, Inc., supra, 32 N.J. 358 at 403-404, 161 A.2d 69, and its progeny." The court went on to void the choice of law provision in part because it was not conspicuous and stated at 256 N.J. Super. 538, 545, 607 A.2d 703: "Although the Code does not expressly require that choice of law provisions be conspicuous, it seems to me that a contractual choice of law provision raises a unique problem in contract law. The meaning of the rest of the contract may be gleaned simply be careful reading. However, the incorporation in a contract of another state's entire body of law affecting the rights and liabilities of the parties may have serious consequences which are essentially unknowable to the layman. It is surely a minimal imposition, if any, on the freedom of contract to construe the Code so as to require that choice of law provisions be 'conspicuous' as that concept is defined in N.J.S.A. 12A:1-201(10) . The Code specifically requires conspicuousness for warranty disclaimers, and, as noted, the Appellate Division in Herbstman v. Eastman Kodak Co., 131 N.J. Super. 439, 330 A.2d 384 (App.Div.1974), extended that requirement to limitations of remedy under N.J.S.A. 12A:2-719.