6 ms·

I find it strange that one can put anything in a contract with a disclaimer at the bottom saying that it is "enforceable to the fullest extant of federal and l

I find it strange that one can put anything in a contract with a disclaimer at the bottom saying that it is "enforceable to the fullest extant of federal and local law" knowing what is enforceable. This is misleading at best. In my opinion such contracts should be entirely null and void, not just the unenforceable parts. I do admit that were I in an even remotely close position to changing the law around this it would probably disproportionally affect workers, some penalty would need to be levied against the infringing party, but where would that end?

slededit 8y ago
You can make an unenforceable contract in good faith though. How would you protect those circumstances?
- tyre 8y ago
  You have a lawyer review the contract and they are held responsible if they are approving known-unenforceable agreements.
  - slededit 8y ago
    The situation you are not handling is an "unknown"-unenforceable agreement though. I get that you are trying to solve the knowingly-unenforceable contract situation, but there is a lot of collateral damage with your proposal.
  - FreeFull 8y ago
    Two parties can form a contract without a lawyer ever being involved, though.
  - cimmanom 8y ago
    What about the case where the contract is enforceable at the time of signing but the law changes after it's been signed?
    - s73v3r_ 8y ago
      What about it? At the time it was signed, it was enforceable. So the lawyer would be fine.
      - cimmanom 8y ago
        Should the entire contract then become void when one subclause becomes unenforceable? If not, how is this different from the case where a previously unenforceable clause becomes enforceable?
        tyre 8y ago
        No. There are standard, specific clauses in contracts to prevent this. If one clause is deemed void, the rest of the contract stays as is.
        s73v3r_ 8y ago
        But that's the problem that we've got now. Being able to have such a blanket clause encourages putting in all kinds of crap to see what sticks.
  - tathougies 8y ago
    This is ridiculous because the vast majority of regulations have never been tested in court. If you punished lawyers for making good faith attempts at following the law, all you'll do is encourage lawyers to resort to ever nefarious means to avoid punishment.
- nraynaud 8y ago
  it's generally not a crime if there is no intent, trust the process.
  - deleted 8y ago
    [deleted]
- PurpleBoxDragon 8y ago
  Maybe that's the wrong approach then. Contracts have effectively been weaponized by those who can afford lawyers against those who can't, with those who can't rarely ever benefiting from any sort of contract. Perhaps the solution is to just remove the problem. End contracts entirely between people who can and can't afford contracts.
  - slededit 8y ago
    That would make all sorts of services unavailable to the common person. Essentially if a direct and immediate exchange couldn't be performed the transaction can't happen. A contract is needed for any sort of debt. It could be as simple as putting down a deposit for a contractor to remodel a bathroom.
    - throwaway2048 8y ago
      If large classes of business want to remain in business, they will find a way without such abusive terms.
    - amluto 8y ago
      A less severe change might make sense. Make it so that, when one of the parties involved in a contract is a person who can't reasonably expected to have a lawyer review the contract or who can't reasonably be expected to negotiate the contract, that the entire contract must consist of a series of clauses, all in plain English, all individually agreed to, and all directly relating to the transaction at hand and only the transaction at hand. And that, in such contexts, the party without a lawyer cannot indemnify the other party against anything and cannot waive their right to enforce any of their rights in court and/or with a class action lawsuit. [0] This serves two purposes: 1. Reduce the degree to which fine print can hurt the party signing it in unexpected ways. 2. Make complicated contracts have a real cost in terms of making transactions more annoying. This gives businesses an incentive not to use them. [0] The Wells Fargo fraudulently issued credit lines, for example, were protected a bit because most of the victims had existing arbitration agreements. Those should have been unenforceable because (a) they were not directly related to the fraudulent accounts and (b) Wells Fargo customers should not be able to waive their rights. Instead, CA passed a silly after-the-fact law that says, more or less, that banks cannot enforce arbitration agreements against their customers when fraud is invonved.
- crdoconnor 8y ago
  IANAL but I think in the UK if a contract has too many restrictive and unenforceable clauses a judge will sometimes toss the whole contract. Lawyers are thus incentivized to be careful about what they put in.
crdoconnor 8y ago
I kind of wish somebody would make a website naming and shaming the companies that have awful contractual terms. It would be a good aid to finding decent companies. I've noticed that the companies that have ridiculous "fuck you" contracts tend to be as awful as their contracts tend to imply. "company xyz claims 100% of your IP" is a completely objective measure you can judge them on. Shining a light on it will probably help put an end to it too.
pnw_hazor 8y ago
Nah, the law can change and invalidate formerly legal clauses. So rather than trashing the whole contract because of a change in the law parties can agree in advance to keep the old contract in place and ignore the invalidated bits. Otherwise, companies might be forced to fire employees and vendors and then re-hire them each time employment law or contract law changes.
tathougies 8y ago
By American common law every contract is completely unenforceable if any one part of the contract is unenforceable... unless you write a severability clause. Businesses are never caught by this of course, but everyday people are. Also, contracts are not particularly binding.

slededit 8y ago

You can make an unenforceable contract in good faith though. How would you protect those circumstances?

tyre 8y ago
You have a lawyer review the contract and they are held responsible if they are approving known-unenforceable agreements.
- slededit 8y ago
  The situation you are not handling is an "unknown"-unenforceable agreement though. I get that you are trying to solve the knowingly-unenforceable contract situation, but there is a lot of collateral damage with your proposal.
- FreeFull 8y ago
  Two parties can form a contract without a lawyer ever being involved, though.
- cimmanom 8y ago
  What about the case where the contract is enforceable at the time of signing but the law changes after it's been signed?
  - s73v3r_ 8y ago
    What about it? At the time it was signed, it was enforceable. So the lawyer would be fine.
    - cimmanom 8y ago
      Should the entire contract then become void when one subclause becomes unenforceable? If not, how is this different from the case where a previously unenforceable clause becomes enforceable?
      - tyre 8y ago
        No. There are standard, specific clauses in contracts to prevent this. If one clause is deemed void, the rest of the contract stays as is.
        s73v3r_ 8y ago
        But that's the problem that we've got now. Being able to have such a blanket clause encourages putting in all kinds of crap to see what sticks.
- tathougies 8y ago
  This is ridiculous because the vast majority of regulations have never been tested in court. If you punished lawyers for making good faith attempts at following the law, all you'll do is encourage lawyers to resort to ever nefarious means to avoid punishment.
nraynaud 8y ago
it's generally not a crime if there is no intent, trust the process.
- deleted 8y ago
  [deleted]
PurpleBoxDragon 8y ago
Maybe that's the wrong approach then. Contracts have effectively been weaponized by those who can afford lawyers against those who can't, with those who can't rarely ever benefiting from any sort of contract. Perhaps the solution is to just remove the problem. End contracts entirely between people who can and can't afford contracts.
- slededit 8y ago
  That would make all sorts of services unavailable to the common person. Essentially if a direct and immediate exchange couldn't be performed the transaction can't happen. A contract is needed for any sort of debt. It could be as simple as putting down a deposit for a contractor to remodel a bathroom.
  - throwaway2048 8y ago
    If large classes of business want to remain in business, they will find a way without such abusive terms.
  - amluto 8y ago
    A less severe change might make sense. Make it so that, when one of the parties involved in a contract is a person who can't reasonably expected to have a lawyer review the contract or who can't reasonably be expected to negotiate the contract, that the entire contract must consist of a series of clauses, all in plain English, all individually agreed to, and all directly relating to the transaction at hand and only the transaction at hand. And that, in such contexts, the party without a lawyer cannot indemnify the other party against anything and cannot waive their right to enforce any of their rights in court and/or with a class action lawsuit. [0] This serves two purposes: 1. Reduce the degree to which fine print can hurt the party signing it in unexpected ways. 2. Make complicated contracts have a real cost in terms of making transactions more annoying. This gives businesses an incentive not to use them. [0] The Wells Fargo fraudulently issued credit lines, for example, were protected a bit because most of the victims had existing arbitration agreements. Those should have been unenforceable because (a) they were not directly related to the fraudulent accounts and (b) Wells Fargo customers should not be able to waive their rights. Instead, CA passed a silly after-the-fact law that says, more or less, that banks cannot enforce arbitration agreements against their customers when fraud is invonved.
crdoconnor 8y ago
IANAL but I think in the UK if a contract has too many restrictive and unenforceable clauses a judge will sometimes toss the whole contract. Lawyers are thus incentivized to be careful about what they put in.

crdoconnor 8y ago

I kind of wish somebody would make a website naming and shaming the companies that have awful contractual terms. It would be a good aid to finding decent companies. I've noticed that the companies that have ridiculous "fuck you" contracts tend to be as awful as their contracts tend to imply. "company xyz claims 100% of your IP" is a completely objective measure you can judge them on. Shining a light on it will probably help put an end to it too.

pnw_hazor 8y ago

Nah, the law can change and invalidate formerly legal clauses. So rather than trashing the whole contract because of a change in the law parties can agree in advance to keep the old contract in place and ignore the invalidated bits. Otherwise, companies might be forced to fire employees and vendors and then re-hire them each time employment law or contract law changes.

tathougies 8y ago

By American common law every contract is completely unenforceable if any one part of the contract is unenforceable... unless you write a severability clause. Businesses are never caught by this of course, but everyday people are. Also, contracts are not particularly binding.