Restatement Second of Contracts 211 Interpretation
In Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984), the supreme court adopted Restatement (Second) of Contracts 211 (1981) to govern the enforcement of boilerplate language in standardized contracts.
Section 211 provides:
(1) Except as stated in Subsection (3), where a party to an agreement signs or otherwise manifests assent to a writing and has reason to believe that like writings are regularly used to embody terms of agreements of the same type, he adopts the writing as an integrated agreement with respect to the terms included in the writing.
(2) Such a writing is interpreted wherever reasonable as treating alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.
(3) Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.
In Darner, the Arizona Supreme Court recognized that modern commercial business practice depends upon the use of standardized forms, yet also acknowledged that customers often sign these forms without fully being aware of all their terms. Darner, 140 Ariz. at 393-94, 682 P.2d at 398-99.
In adopting the Restatement section, the supreme court authorized a trial court to enforce a boilerplate term unless the drafter had reason to believe that the adhering party would not have assented to the term. Id. at 394, 682 P.2d at 400.
This belief that the adhering party would not have assented may be inferred if the language is "'bizarre or oppressive, . . . if it eviscerates the non-standard terms explicitly agreed to, or . . . eliminates the dominant purpose of the transaction.'" Id. at 391-92, 682 P.2d at 396-97, quoting Restatement (Second) of Contracts 211 cmt. f.