8 ms·

I don't think easy-to-digest summaries change anything. It should just not be possible to apply conditions as a click-through. A contract is supposed to be a me

I don't think easy-to-digest summaries change anything. It should just not be possible to apply conditions as a click-through. A contract is supposed to be a meeting of the minds, and a mindless way to accept it is not that. Same goes for like car rental contracts imo. It's clear that a normal person is agreeing to the obvious stuff, but anything weird slipped in should just be unenforceable. So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.

walterbell 4y ago
Any real-world examples of this being achieved in any business domain and jurisdiction?
- tty74 4y ago
  Yep, that’s how it works in Germany. There are laws that cover many cases for, i.e., lease contracts, online shopping, digital services. The terms of service just cover the specifics and cannot contain “surprising” or “unusual” things. The general idea is that a normal consumer neither have the knowledge nor the time to understand in depth legalese. As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
  - 015a 4y ago
    In the US: they are long, but in my experience they're also extremely usual. Every apartment I've rented (5 in my city) has used the exact same template; with some blank lines and checkboxes where they write in "You'll pay this much in rent" "for this long" "pets are allowed" "garage: n/a" "satellite dish: n/a" etc.
    - ethbr0 4y ago
      The point being: there are no consequences for a landlord slipping one extreme condition into that template. Maybe on page 17. And, as long as it doesn't breach any explicit laws, that condition is equally enforceable. The German system above appears to specifically address that issue with US law.
      - Invictus0 4y ago
        I don't pity anyone that can't be bothered to read their lease before signing. If we can't read 30 page contracts as a society then the contracts are not the problem, we are.
        ethbr0 4y ago
        I'm as much a fan of caveat emptor as any libertarian, but that doesn't mean we can't make it easier. Parsing 20+ pages of legalese, when it could be shipped as a diff instead, is simply inefficient.
        kube-system 4y ago
        100% of people need housing but well <100% of people can read and fully understand a legal document. Contracts don't bind society, they bind individual people.
        version_five 4y ago
        And it's not just about being able to read and understand. It's power dynamics. How often are you in a position to negotiate the boilerplate contract that gets put in front of you when you're doing most normal stuff. It's "sign here and here and here, etc", not "read this over and come back with your edits". I negotiate contracts as part of my job, and we go back and forth and make sure parties agreed and understand. As someone else pointed out, such contracts almost certainly should be enforceable, even with unusual terms, because they were expressly co-written and agreed to. An uneditable document drafted by and in favor of one party is not the same thing at all, regardless of the signer's capacity to understand
    - nitwit005 4y ago
      A lot of website privacy policies are just people filling out privacy policy generator sites. They might as well just directly show the boxes checked and fields filled out, instead of the output document.
    - dragonwriter 4y ago
      > Every apartment I've rented (5 in my city) has used the exact same template. Given the number of different templates floating around tailored to most individual states, that’s either an extreme coincidence, or there is shared ownership, management, or legal representation between the different apartment complexes.
- SoftTalker 4y ago
  When I lived in Chicago, there was a standard residential apartment lease that to my understanding was written by the city. If you were leasing residential property in the city, you had to use that lease, and you could not change it. I won't swear that this is correct, or that it still works that way, but that was my impression. I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
  - texasbigdata 4y ago
    I believe Texas is like this as well [1]. https://eforms.com/rental/tx/texas-standard-residential-lease-agreement-template/ https://eforms.com/rental/tx/texas-standard-residential-leas...
- barbariangrunge 4y ago
  You never used to need a lease to rent an apartment. Also, purchasing is a form of implied standard contract
- rlpb 4y ago
  More like the opposite of what you asked, but a car park with a traditional pay machine didn't have much in the way of terms and conditions. Now that they have apps, suddenly there are pages and pages. But they managed before, so they should be able to manage now. I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
- deleted 4y ago
  [deleted]
- GuB-42 4y ago
  I am a landlord in France, and from what I've seen, rental contracts are essentially not worth the paper they are written on. Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
  - 4RealFreedom 4y ago
    I don't know if I like that or hate it. Having the simplicity that everything is equal is great. What about pet clauses, garage access, and such? Seems like those would need to be respected.
    - zaarn 4y ago
      I'm in Germany not France but Pet Clauses aren't generally valid. Garage access is only an issue if you pay for it. If you pay for a garage, the landlord has to ensure you have access and depending on the type of contract, ensure you are the only one with access (re; shared vs solo garages). The Pet Clause thing only concerns big pets. Anything the size of a normal house cat or smaller (except actual house cats and exotic/unusual pets) requires no special permission. If larger pets are banned, this is only valid if there is a contract condition to allow the tenant to get special permission to have a cat or dog. A total and general ban of all pets is considered too disadvantageous for the tenant and thus not allowed. When asking for permission, the denial must have an explanation attached. "Pet can cause damage" isn't allowed for example, since the owner could just buy a pet insurance to cover any claims. Noise and dirt aren't either, since the landlord can require the owner to take care of that. Basically the explanation of why you deny a pet has to be something that the owner doesn't have the power to change easily, such as that the landlord is allergic and living in the flat above you or similar things. This kinda stuff is usually added at the end of the template contract, there isn'T a lot to read so they tend to be obvious.
- dangrossman 4y ago
  Yes: the Uniform Commercial Code which is the standard contract that governs virtually all commercial transactions in the United States. When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws. https://www.law.cornell.edu/wex/table_ucc https://www.law.cornell.edu/wex/table_ucc This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
  - Danieru 4y ago
    This is also why releasing code without a license is dangerous. Without a license your code defaults to the UGC and thus you become liable for "fit for purpose". Instead even basic open source licenses must disclaim the default clauses if the UGC like warranty and fit for purpose.
    - musicale 4y ago
      I'm not sure about software that is given away for free, but "fit for purpose" liability certainly sounds like a sensible idea for any software that is sold, whether or not it includes free or open source components. This makes even more sense as software becomes a key component of more products.
    - saagarjha 4y ago
      If you don’t license your code then other people don’t default to getting the rights to use it.
      - labster 4y ago
- Animats 4y ago
  Medicare supplement policies. Those are rigidly standardized. Insurers hate that, because all they can do is compete on price.
Eddy_Viscosity2 4y ago
I'd also things to be explicitly unenforceable in certain contracts like binding arbitration or gag clauses. If these are challenged in court the company automatically loses and has to pay a substantial fee for even having them in the contract in the first place.
mLuby 4y ago
What if there were no terms, it's just "if you can, you may." Of course subject to laws (like fraud or vandalism) and the company's moderation efforts, of course.
underwater 4y ago
To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties? If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.
- EntropyIsAHoax 4y ago
- remus 4y ago
  > To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties? I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement. You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
  - chii 4y ago
    Which is why a contract is insufficient as a form of consumer protection. Think GDPR - i think despite the disruptions as a result from it, GDPR has done a fairly good job in forcing rules so that companies complying is considered to have provided sufficient privacy and data protection. Why not produce such a set of rules for consumer protection?
avnigo 4y ago
Standard contracts make a lot of sense to my non-lawyer mind, almost like having the different kinds of open source licenses for software that have become recognizable.
izacus 4y ago
> So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid. This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates. TOS/EULAs are there usually to modify and take away rights from consumer laws.

walterbell 4y ago

Any real-world examples of this being achieved in any business domain and jurisdiction?

tty74 4y ago
Yep, that’s how it works in Germany. There are laws that cover many cases for, i.e., lease contracts, online shopping, digital services. The terms of service just cover the specifics and cannot contain “surprising” or “unusual” things. The general idea is that a normal consumer neither have the knowledge nor the time to understand in depth legalese. As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
- 015a 4y ago
  In the US: they are long, but in my experience they're also extremely usual. Every apartment I've rented (5 in my city) has used the exact same template; with some blank lines and checkboxes where they write in "You'll pay this much in rent" "for this long" "pets are allowed" "garage: n/a" "satellite dish: n/a" etc.
  - ethbr0 4y ago
    The point being: there are no consequences for a landlord slipping one extreme condition into that template. Maybe on page 17. And, as long as it doesn't breach any explicit laws, that condition is equally enforceable. The German system above appears to specifically address that issue with US law.
    - Invictus0 4y ago
      I don't pity anyone that can't be bothered to read their lease before signing. If we can't read 30 page contracts as a society then the contracts are not the problem, we are.
      - ethbr0 4y ago
        I'm as much a fan of caveat emptor as any libertarian, but that doesn't mean we can't make it easier. Parsing 20+ pages of legalese, when it could be shipped as a diff instead, is simply inefficient.
      - kube-system 4y ago
        100% of people need housing but well <100% of people can read and fully understand a legal document. Contracts don't bind society, they bind individual people.
        version_five 4y ago
        And it's not just about being able to read and understand. It's power dynamics. How often are you in a position to negotiate the boilerplate contract that gets put in front of you when you're doing most normal stuff. It's "sign here and here and here, etc", not "read this over and come back with your edits". I negotiate contracts as part of my job, and we go back and forth and make sure parties agreed and understand. As someone else pointed out, such contracts almost certainly should be enforceable, even with unusual terms, because they were expressly co-written and agreed to. An uneditable document drafted by and in favor of one party is not the same thing at all, regardless of the signer's capacity to understand
  - nitwit005 4y ago
    A lot of website privacy policies are just people filling out privacy policy generator sites. They might as well just directly show the boxes checked and fields filled out, instead of the output document.
  - dragonwriter 4y ago
    > Every apartment I've rented (5 in my city) has used the exact same template. Given the number of different templates floating around tailored to most individual states, that’s either an extreme coincidence, or there is shared ownership, management, or legal representation between the different apartment complexes.
SoftTalker 4y ago
When I lived in Chicago, there was a standard residential apartment lease that to my understanding was written by the city. If you were leasing residential property in the city, you had to use that lease, and you could not change it. I won't swear that this is correct, or that it still works that way, but that was my impression. I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
- texasbigdata 4y ago
  I believe Texas is like this as well [1]. https://eforms.com/rental/tx/texas-standard-residential-lease-agreement-template/ https://eforms.com/rental/tx/texas-standard-residential-leas...
barbariangrunge 4y ago
You never used to need a lease to rent an apartment. Also, purchasing is a form of implied standard contract
rlpb 4y ago
More like the opposite of what you asked, but a car park with a traditional pay machine didn't have much in the way of terms and conditions. Now that they have apps, suddenly there are pages and pages. But they managed before, so they should be able to manage now. I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
deleted 4y ago
[deleted]
GuB-42 4y ago
I am a landlord in France, and from what I've seen, rental contracts are essentially not worth the paper they are written on. Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
- 4RealFreedom 4y ago
  I don't know if I like that or hate it. Having the simplicity that everything is equal is great. What about pet clauses, garage access, and such? Seems like those would need to be respected.
  - zaarn 4y ago
    I'm in Germany not France but Pet Clauses aren't generally valid. Garage access is only an issue if you pay for it. If you pay for a garage, the landlord has to ensure you have access and depending on the type of contract, ensure you are the only one with access (re; shared vs solo garages). The Pet Clause thing only concerns big pets. Anything the size of a normal house cat or smaller (except actual house cats and exotic/unusual pets) requires no special permission. If larger pets are banned, this is only valid if there is a contract condition to allow the tenant to get special permission to have a cat or dog. A total and general ban of all pets is considered too disadvantageous for the tenant and thus not allowed. When asking for permission, the denial must have an explanation attached. "Pet can cause damage" isn't allowed for example, since the owner could just buy a pet insurance to cover any claims. Noise and dirt aren't either, since the landlord can require the owner to take care of that. Basically the explanation of why you deny a pet has to be something that the owner doesn't have the power to change easily, such as that the landlord is allergic and living in the flat above you or similar things. This kinda stuff is usually added at the end of the template contract, there isn'T a lot to read so they tend to be obvious.
dangrossman 4y ago
Yes: the Uniform Commercial Code which is the standard contract that governs virtually all commercial transactions in the United States. When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws. https://www.law.cornell.edu/wex/table_ucc https://www.law.cornell.edu/wex/table_ucc This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
- Danieru 4y ago
  This is also why releasing code without a license is dangerous. Without a license your code defaults to the UGC and thus you become liable for "fit for purpose". Instead even basic open source licenses must disclaim the default clauses if the UGC like warranty and fit for purpose.
  - musicale 4y ago
    I'm not sure about software that is given away for free, but "fit for purpose" liability certainly sounds like a sensible idea for any software that is sold, whether or not it includes free or open source components. This makes even more sense as software becomes a key component of more products.
  - saagarjha 4y ago
    If you don’t license your code then other people don’t default to getting the rights to use it.
    - labster 4y ago
Animats 4y ago
Medicare supplement policies. Those are rigidly standardized. Insurers hate that, because all they can do is compete on price.

Eddy_Viscosity2 4y ago

I'd also things to be explicitly unenforceable in certain contracts like binding arbitration or gag clauses. If these are challenged in court the company automatically loses and has to pay a substantial fee for even having them in the contract in the first place.

mLuby 4y ago

What if there were no terms, it's just "if you can, you may." Of course subject to laws (like fraud or vandalism) and the company's moderation efforts, of course.

underwater 4y ago

To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties? If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.

EntropyIsAHoax 4y ago
remus 4y ago
> To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties? I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement. You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
- chii 4y ago
  Which is why a contract is insufficient as a form of consumer protection. Think GDPR - i think despite the disruptions as a result from it, GDPR has done a fairly good job in forcing rules so that companies complying is considered to have provided sufficient privacy and data protection. Why not produce such a set of rules for consumer protection?

avnigo 4y ago

Standard contracts make a lot of sense to my non-lawyer mind, almost like having the different kinds of open source licenses for software that have become recognizable.

izacus 4y ago

> So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid. This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates. TOS/EULAs are there usually to modify and take away rights from consumer laws.