5 ms·
A lot of contracts (especially ToS) are just throwing stuff at a wall to see what sticks. I've yet to see a ToS or EULA that's 100% enforceable in the EU and I'
by pluma 8y ago
A lot of contracts (especially ToS) are just throwing stuff at a wall to see what sticks. I've yet to see a ToS or EULA that's 100% enforceable in the EU and I'd be surprised to hear they're 100% enforceable even in the consumer-hostile, corporation-friendly US.
An overeager ToS is a good way to scare people who are unwilling to risk a legal dispute. In practice a lot of the more preposterous clauses are nonsense.
- rectang 8y agoIt doesn't matter if the nonsense provisions are ultimately enforceable, so long as they're credible enough to be litigated. The courts provide a battlefield where the army of company lawyers will fight you in a lopsided war of attrition that ends with your financial ruin. Might makes right.
- evandijk70 8y agoSeems like there should be a fine for putting unenforcable clauses into contracts to discourage this practice
- rectang 8y agoI agree, but I think your perspective on this depends on who you think the courts are supposed to serve. In the US, courts enabling wealthy corporations to smash individual citizens into meat paste are working as intended. It is "justice for sale", albeit indirectly -- you don't pay the judge, you pay for enough lawyering to destroy the opponent, win or lose.
- marcoperaza 8y agoLegal questions are rarely truly settled. You might think a clause is unenforceable based on some lower court rulings in your state, but a different lower court could is still free to rule the other way, an appeals court could still overturn, a federal court could overrule the state courts on a Contract Clause theory, etc. And even in the rare case where there is an on-point US Supreme Court ruling, the Supreme Court is free to reverse itself tomorrow. Also, consider that you and I are free to agree to anything we want, enforceable or not. All that enforceability tells you is whether a court will be willing to intervene. For example, we can agree that you will donate a million dollars to my foundation, but a court will likely not enforce that because I didn't give you anything in exchange (the doctrine of consideration).
- scotty79 8y agoFunny thing is that if there's a single illegal phrase in the agreement, in my country, whole agreement illegal and thus void. Since my country is in the EU it pretty much means that in my country law agrees with practice of ignoring all ToS by deefault.
- pluma 8y agoThat's why most contracts contain a clause that specifically accounts for this: https://en.wikipedia.org/wiki/Severability https://en.wikipedia.org/wiki/Severability That said, under German consumer protection laws a ToS may also not contain anything that could be considered "surprising" (which is generally interpreted in favor of consumers) so most ToSes are fairly pointless as soon as they go beyond the basics.
- msiyer 8y agoAgree. What bothers me most is the price David has to pay to slay the ToS of the Goliath. It is prohibitive, to say the least. Thus, there is nothing to stop this trend of ridiculous ToSs. Such violation of human rights should attract swift and exemplary punishment. Also, the small guy should not pay for this community service he is performing.
- doombolt 8y ago> there is nothing to stop this trend of ridiculous ToSs. That's easy right here. Let's just tax corporations 1¢ per user per word in their ToS.
- pluma 8y agoOr just fine them if they try to assert rights they aren't legally allowed to assert. After all you're trying to trick consumers into thinking they are subject to a contract that's actually invalid.