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Whether something is "legal" is a fuzzy computation that runs in the minds of average citizens on a jury, though it's more commonly simulated by judges and lawy

by mLuby 6y ago

Whether something is "legal" is a fuzzy computation that runs in the minds of average citizens on a jury, though it's more commonly simulated by judges and lawyers. The text is not absolute. So what if an accept-only contract (like a ToS, EULA, or consent pop-up) did what average users think they agreed to, regardless of what the text says? This would shift the burden of understanding from the user, where it currently lies, to the company. If it's essential to a company's business model that users agree to something complex that most users don't understand, the company will just have to help the users understand, deploying all those marketing and UX patterns they've perfected over the years to do so. (Yes I know this isn't how contracts currently work; it's just a harmless little thought experiment.)

Silhouette 6y ago
FWIW, legal systems are sometimes closer to what you're describing there than you might realise. Obviously this varies with jurisdiction, but contracts of adhesion often do carry less weight in the event of litigation, for example automatically giving any benefit of the doubt to the party that didn't write the contract. Often there are relevant consumer protection rules as well, for example a general requirement that the terms of any B2C agreement must be reasonable or they will be unenforceable. More generally still, contract law is usually based on the basic idea of a meeting of minds, with an implication that all parties understand the contract they are entering into. When we drew up the Ts & Cs for my first business that was selling online, we took advice from a lawyer who specialised in this kind of work, and one of the first points they made was that if there was anything at all surprising or unusual in what we wanted for our terms, it should be emphasized prominently and early, not buried in small print at the back, for exactly the kind of reasons above. I once saw an anecdote (possibly apocryphal, I don't know) about a consumer rights lawyer who said they never bothered reading the small print in these situations. When someone expressed surprise that even a lawyer wouldn't check what they were signing up to, they replied that either the terms offered would be reasonable, in which case the lawyer would have no problem with them, or they wouldn't, in which case the unreasonable aspects would be unenforceable anyway.

by mLuby 6y ago

Silhouette 6y ago

FWIW, legal systems are sometimes closer to what you're describing there than you might realise. Obviously this varies with jurisdiction, but contracts of adhesion often do carry less weight in the event of litigation, for example automatically giving any benefit of the doubt to the party that didn't write the contract. Often there are relevant consumer protection rules as well, for example a general requirement that the terms of any B2C agreement must be reasonable or they will be unenforceable. More generally still, contract law is usually based on the basic idea of a meeting of minds, with an implication that all parties understand the contract they are entering into. When we drew up the Ts & Cs for my first business that was selling online, we took advice from a lawyer who specialised in this kind of work, and one of the first points they made was that if there was anything at all surprising or unusual in what we wanted for our terms, it should be emphasized prominently and early, not buried in small print at the back, for exactly the kind of reasons above. I once saw an anecdote (possibly apocryphal, I don't know) about a consumer rights lawyer who said they never bothered reading the small print in these situations. When someone expressed surprise that even a lawyer wouldn't check what they were signing up to, they replied that either the terms offered would be reasonable, in which case the lawyer would have no problem with them, or they wouldn't, in which case the unreasonable aspects would be unenforceable anyway.