4 ms·

The "you can't use the service" because the TOS conflicts with the laws in you locality bit isn't necessarily true - it varies a lot by country. Plenty of plac

by nmcfarl 11y ago

The "you can't use the service" because the TOS conflicts with the laws in you locality bit isn't necessarily true - it varies a lot by country. Plenty of places just invalidate the parts of your TOS (or any other contract) that conflict with the law. Which leaves it up to the company to decide whether they wish to pursue business in that locality. INAL

DannyBee 11y ago
IAAL :) So, "conflict with the law" is a not-well-defined term. There are 196 countries, so yes, you could say it varies. But i'm not sure which are the "plenty" you are thinking about, and i'd love to see specific examples of what you are thinking about. Generally, most countries have pretty consistent law here. If the contract is a contract for you to perform something illegal (like murder), that will not be enforced. A contract that says "you must do X if you wish to use our service", in basically any reasonable country you can think of, is not going to be invalidated if you can't do X because it's illegal when done in very certain ways in very specific circumstances. This is because, again, in general, you can't claim the benefit of the contract (using the service) but not have to have the burden.
- jsprogrammer 11y ago
  TOS are typically not contracts.
  - DannyBee 11y ago
    In what way are you referring to? I'm trying to understand what distinction you are trying to draw. You are simply stating this bare as if it makes any sense, and i can tell you, it does not :) Unilateral contracts are still contracts :) (you can make some sane distinctions between licenses and contracts, but only in pretty simple cases, and twitters TOS is not a copyright license, but instead, an actual contract)
    - jsprogrammer 11y ago
      TOS may technically be some definition of contract. I mean to imply that most TOS are not binding, executed contracts.
      - DannyBee 11y ago
        This is not right. Most TOS, in most states in the US (and a lot of countries), are going to be binding. There are some that overreach. I expect google/twitter/et al have written theirs carefully enough to not fall into this case.
- nmcfarl 11y ago
  I kind of thought the generally consistent law was the way you describe it – however my not a lawyer understanding was if the contract requires X which violates the law in a very specific circumstance in a very specific way that particular clause under that particular circumstance, that particular way would be void, but the whole contract would not and would still stand - benefits and burdens combined. Including that clause, under "normal" circumstances. Which is basically to say my understanding was that, in most countries, you can reasonably sign a legal contract and know you will never have to commit an illegal action in pursuit of it. And if your counterpart in the contract really wants you to commit an illegal action it's on them to decide whether they want to do business in a country where the action is it illegal. Not on you. Once again, IANAL. And my understanding could be way wrong.
  - DannyBee 11y ago
    "Which is basically to say my understanding was that, in most countries, you can reasonably sign a legal contract and know you will never have to commit an illegal action in pursuit of it. " This is false :)
    - nmcfarl 11y ago
      That is stupid scary. How does it square with your murder statement above?
      - DannyBee 11y ago
        If the only way to complete a contract is to perform an illegal act, you will be excused from performance. But if you have an alternative, it's a valid contract for the legal alternative. IE if i say "i'll pay you $1000, and you will deliver to me rice or smuggled opium", this is a valid contract to pay $1000 for rice. Also as i mentioned, you will generally be required to pay restitution. That is, pay back any benefit and least stop using/doing whatever benefit you are accruing(in this case, i presume using the service). So you can't use it to your advantage.
- wjnc 11y ago
  <i'd love to see specific examples of what you are thinking about> IANAL, but here goes: In The Netherlands certain clauses in TOS ('algemene voorwaarden') are void by default when they are against a limited list written down in basis contract law. Another list of clauses are null when they are not unreasonably limiting. So any contract within Dutch jurisdiction is limited in that way. A contract with X.com would not hit Dutch jurisdiction directly, although with a Dutch website / translation and perhaps a Dutch office you easily come into reach. Examples: You cannot be held to TOS that are not willfully handed to you. (So no tiny signs in stores, or hidden on websites. Exact translation obviously ambiguous.) Changes in pricing, especially early in the contract, usually give the right to cancel the contract. Should be able to cancel contracts anyways. Should deliver timely, and cannot contract 'untimely delivery'. Still, daresay that contract law on the internet in the Netherlands is not a big field of litigation. For one thing, our damages are usually only 'true (financial) damages'. So in the context of (nearly) free products, you hardly get any litigation. Class action is limited, too. Example here: consider a webshop that cancels your order after a discount gets too popular. You could probably demand fullfillment, since they could easily deliver from other retailers at a loss. But considering the costs of litigation are many times the difference in price, most people resign upon ordering elsewhere. Can't even say I regret that injustice, since the benefits of not clogging the judicial seem large enough.

by nmcfarl 11y ago

DannyBee 11y ago

IAAL :) So, "conflict with the law" is a not-well-defined term. There are 196 countries, so yes, you could say it varies. But i'm not sure which are the "plenty" you are thinking about, and i'd love to see specific examples of what you are thinking about. Generally, most countries have pretty consistent law here. If the contract is a contract for you to perform something illegal (like murder), that will not be enforced. A contract that says "you must do X if you wish to use our service", in basically any reasonable country you can think of, is not going to be invalidated if you can't do X because it's illegal when done in very certain ways in very specific circumstances. This is because, again, in general, you can't claim the benefit of the contract (using the service) but not have to have the burden.

jsprogrammer 11y ago
TOS are typically not contracts.
- DannyBee 11y ago
  In what way are you referring to? I'm trying to understand what distinction you are trying to draw. You are simply stating this bare as if it makes any sense, and i can tell you, it does not :) Unilateral contracts are still contracts :) (you can make some sane distinctions between licenses and contracts, but only in pretty simple cases, and twitters TOS is not a copyright license, but instead, an actual contract)
  - jsprogrammer 11y ago
    TOS may technically be some definition of contract. I mean to imply that most TOS are not binding, executed contracts.
    - DannyBee 11y ago
      This is not right. Most TOS, in most states in the US (and a lot of countries), are going to be binding. There are some that overreach. I expect google/twitter/et al have written theirs carefully enough to not fall into this case.
nmcfarl 11y ago
I kind of thought the generally consistent law was the way you describe it – however my not a lawyer understanding was if the contract requires X which violates the law in a very specific circumstance in a very specific way that particular clause under that particular circumstance, that particular way would be void, but the whole contract would not and would still stand - benefits and burdens combined. Including that clause, under "normal" circumstances. Which is basically to say my understanding was that, in most countries, you can reasonably sign a legal contract and know you will never have to commit an illegal action in pursuit of it. And if your counterpart in the contract really wants you to commit an illegal action it's on them to decide whether they want to do business in a country where the action is it illegal. Not on you. Once again, IANAL. And my understanding could be way wrong.
- DannyBee 11y ago
  "Which is basically to say my understanding was that, in most countries, you can reasonably sign a legal contract and know you will never have to commit an illegal action in pursuit of it. " This is false :)
  - nmcfarl 11y ago
    That is stupid scary. How does it square with your murder statement above?
    - DannyBee 11y ago
      If the only way to complete a contract is to perform an illegal act, you will be excused from performance. But if you have an alternative, it's a valid contract for the legal alternative. IE if i say "i'll pay you $1000, and you will deliver to me rice or smuggled opium", this is a valid contract to pay $1000 for rice. Also as i mentioned, you will generally be required to pay restitution. That is, pay back any benefit and least stop using/doing whatever benefit you are accruing(in this case, i presume using the service). So you can't use it to your advantage.
wjnc 11y ago
<i'd love to see specific examples of what you are thinking about> IANAL, but here goes: In The Netherlands certain clauses in TOS ('algemene voorwaarden') are void by default when they are against a limited list written down in basis contract law. Another list of clauses are null when they are not unreasonably limiting. So any contract within Dutch jurisdiction is limited in that way. A contract with X.com would not hit Dutch jurisdiction directly, although with a Dutch website / translation and perhaps a Dutch office you easily come into reach. Examples: You cannot be held to TOS that are not willfully handed to you. (So no tiny signs in stores, or hidden on websites. Exact translation obviously ambiguous.) Changes in pricing, especially early in the contract, usually give the right to cancel the contract. Should be able to cancel contracts anyways. Should deliver timely, and cannot contract 'untimely delivery'. Still, daresay that contract law on the internet in the Netherlands is not a big field of litigation. For one thing, our damages are usually only 'true (financial) damages'. So in the context of (nearly) free products, you hardly get any litigation. Class action is limited, too. Example here: consider a webshop that cancels your order after a discount gets too popular. You could probably demand fullfillment, since they could easily deliver from other retailers at a loss. But considering the costs of litigation are many times the difference in price, most people resign upon ordering elsewhere. Can't even say I regret that injustice, since the benefits of not clogging the judicial seem large enough.