explaining that in Leong, the “plaintiffs did not argue that an agreement to arbitrate was not formed due to a lack of mutual assent,” and therefore, “the Leong court did not analyze the issue of contract formation, including the element of mutual assent”
How later courts described this case
- explaining that in Leong, the “plaintiffs did not argue that an agreement to arbitrate was not formed due to a lack of mutual assent,” and therefore, “the Leong court did not analyze the issue of contract formation, including the element of mutual assent”
- “[C]ourts have recognized that well-established common law principles dictate that in an appropriate case a nonsignatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties [including] incorporation by reference, assumption, agency, veil-piercing/alter ego, estoppel, and third-party beneficiary theories.” (internal quotation marks omitted)
- “The existence of mutual assent or intent to accept is determined by an objective standard.”
- “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” (quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
Concurring Opinion by
McKENNA, J.
I concur in the result, and also with Justice Acoba’s concurring opinion that there was no valid waiver of the Siopeses’ right to jury trial under Article I, Section 13 of the Hawaii Constitution.
I write separately, however, because respectfully, I do not believe Leong v. Kaiser Found. Hosps., 71 Haw. 240 , 788 P.2d 164 (1990) is distinguishable. Rather, I believe Leong should be overruled based on the lack of mutual assent to the arbitration agreement exhibited by the facts of that case, pursuant to this court’s later holding in Brown v. KFC Nat’l Mgmt. Co., 82 Hawai'i 226 , 921 P.2d 146 (1996).