4 ms·

A lot of people like the situation as it is right now, with regard to binding arbitration. Some of those people are "in the pocket of big business," as it were

A lot of people like the situation as it is right now, with regard to binding arbitration. Some of those people are "in the pocket of big business," as it were; some see any limitation on the ability of government to "interfere" with commerce as a good thing; some do not think the courts are fair and would rather take their chances with a "competitive" arbitration system; some do not care because they don't see themselves as ever needing to go to court; some object to "big money lawyers who sue for any little thing." It's not as slam-dunk as it seems. Though, I agree, mandatory binding arbitration ought to be banned, especially in these "contracts of adhesion" (also known as take-it-or-leave-it contracts) where the customer/person who does not put forth the contract is in a significantly reduced negotiating position, as is common in most business-to-consumer transactions. I am particularly disappointed to see so many startups pitched on HackerNews, a group of startup founders and technology people who should know better, putting mandatory binding arbitration clauses in their user agreements. At least put in an opt-out, you disingenuous clods.

hamstercat 6y ago
It's difficult to get a man to understand something, when his salary depends upon his not understanding it. This is why we have laws. Clearly no companies are interested in changing their ways, and why would they?
- techsupporter 6y ago
  > Clearly no companies are interested in changing their ways, and why would they? Entirely fair and I agree with you. But if Chase, Capital One, T-Mobile, Shadow Game Server Rentals, and other large and small companies can slap an opt-out clause in their terms, why are HN startups so loathe to do so? For fuck's sake there was a company selling a wifi-equipped PLANTER BOX that had a never-sufficiently-damned arbitration clause in their terms.
  - mindslight 6y ago
    Opt out clauses are a red herring. I of course do them, but most people are not going to. By the way they're generally set up ("send self-written snail mail to this obscure address and we won't even respond"), it's clear they're meant to be merely a technicality that very few will ever notice or fulfill. If they were an actual part of a negotiated contract, they would be simply struck directly on the document before signing. Tangentially, I do have to wonder about using web page inspector tools to modify terms presented to you, and then agreeing to the modified terms. Taking screen shots for documentation of course. At the very least, it seems like this should result in no contract being formed (since the counterparty has not signed). Which isn't really meaningful for your standard web service everything-disclaimed terms, but would matter if they tried to bind you with mandatory arbitration.
    - salawat 6y ago
      Actually, that wouldn't work. Most IT systems associate your acceptance with a particular document tracked in a database. It's really a tracker of "User pushed button in this time period." You making alterations would never manifest or be accommodated in the system; what you'd have to do is mail their legal department with a statement of interest with revisions which they'd have to adapt, which would have to filter back through Sales for adjustments in pricing. Make no mistake, IT has enabled the most abusive form of contract entering known to Man. Frankly, I'd say it completely undermines the practice of entering into a contract, but as long as people let it skate due to the understanding they took could one day do the same thing; this is what we have. The court friendly approach would be legislating a law that invalidates certain clauses, but leaves the low barrier to entry mechanism in place I'm fairly certain. Though I still have qualms on the whole astroglide lubricated nature of that medium of contract acceptance.
      - mindslight 6y ago
        I know how the technical side works. But legally, what the company thinks you have signed isn't the final word. Consider an analogous in-person situation of being presented with a one-signature agreement by a customer service rep. You can cross things out and sometimes the CSR will balk but often they will not. When they don't, it's likely because they're being lazy or succumbing to social pressure, as the customers usually do. So they accept the modified signed document, and pass it on to their back office or file it away. The company would argue that the CSR is not empowered to make binding contracts on behalf of the company outside of the unilateral boilerplate. But you certainly haven't agreed to the bits you have crossed out before signing. The performance on both sides does show some kind of contract has been formed. But neither written document is straightforward evidence of the exact contract. I would suspect that few courts would find in your favor if you inserted unconscionable terms (eg company pays you $1MM). But when it's the company trying to push unconscionable terms (like making the words of the contract meaningless by removing your ability to take them to court), I could see it going either way.

hamstercat 6y ago

It's difficult to get a man to understand something, when his salary depends upon his not understanding it. This is why we have laws. Clearly no companies are interested in changing their ways, and why would they?

techsupporter 6y ago
> Clearly no companies are interested in changing their ways, and why would they? Entirely fair and I agree with you. But if Chase, Capital One, T-Mobile, Shadow Game Server Rentals, and other large and small companies can slap an opt-out clause in their terms, why are HN startups so loathe to do so? For fuck's sake there was a company selling a wifi-equipped PLANTER BOX that had a never-sufficiently-damned arbitration clause in their terms.
- mindslight 6y ago
  Opt out clauses are a red herring. I of course do them, but most people are not going to. By the way they're generally set up ("send self-written snail mail to this obscure address and we won't even respond"), it's clear they're meant to be merely a technicality that very few will ever notice or fulfill. If they were an actual part of a negotiated contract, they would be simply struck directly on the document before signing. Tangentially, I do have to wonder about using web page inspector tools to modify terms presented to you, and then agreeing to the modified terms. Taking screen shots for documentation of course. At the very least, it seems like this should result in no contract being formed (since the counterparty has not signed). Which isn't really meaningful for your standard web service everything-disclaimed terms, but would matter if they tried to bind you with mandatory arbitration.
  - salawat 6y ago
    Actually, that wouldn't work. Most IT systems associate your acceptance with a particular document tracked in a database. It's really a tracker of "User pushed button in this time period." You making alterations would never manifest or be accommodated in the system; what you'd have to do is mail their legal department with a statement of interest with revisions which they'd have to adapt, which would have to filter back through Sales for adjustments in pricing. Make no mistake, IT has enabled the most abusive form of contract entering known to Man. Frankly, I'd say it completely undermines the practice of entering into a contract, but as long as people let it skate due to the understanding they took could one day do the same thing; this is what we have. The court friendly approach would be legislating a law that invalidates certain clauses, but leaves the low barrier to entry mechanism in place I'm fairly certain. Though I still have qualms on the whole astroglide lubricated nature of that medium of contract acceptance.
    - mindslight 6y ago
      I know how the technical side works. But legally, what the company thinks you have signed isn't the final word. Consider an analogous in-person situation of being presented with a one-signature agreement by a customer service rep. You can cross things out and sometimes the CSR will balk but often they will not. When they don't, it's likely because they're being lazy or succumbing to social pressure, as the customers usually do. So they accept the modified signed document, and pass it on to their back office or file it away. The company would argue that the CSR is not empowered to make binding contracts on behalf of the company outside of the unilateral boilerplate. But you certainly haven't agreed to the bits you have crossed out before signing. The performance on both sides does show some kind of contract has been formed. But neither written document is straightforward evidence of the exact contract. I would suspect that few courts would find in your favor if you inserted unconscionable terms (eg company pays you $1MM). But when it's the company trying to push unconscionable terms (like making the words of the contract meaningless by removing your ability to take them to court), I could see it going either way.