4 ms·
Contract law over time has moved in the opposite direction, for better or for worse. Most contacts can be entered into merely by mutual assent[0]; the term of
by dpifke 3y ago
Contract law over time has moved in the opposite direction, for better or for worse. Most contacts can be entered into merely by mutual assent[0]; the term of art for what you're describing is a "meeting of the minds"[1] and is a higher standard.
Essentially, the way to opt out of a ToS you haven't read or don't understand is not to use (accept) the company's services (offer). Consumers are assumed to know "there's no such thing as a free lunch," thus when a company offers a product there must be something expected in return for accepting that offer. The onus is on the consumer to evaluate whether accepting the company's offer is reasonable or fair. Requiring offerors to second-guess acceptors' evaluation processes seems like it would come with its own set of problems.
[0]: https://www.law.cornell.edu/wex/mutual_assent https://www.law.cornell.edu/wex/mutual_assent
[1]: https://www.law.cornell.edu/wex/meeting_of_the_minds https://www.law.cornell.edu/wex/meeting_of_the_minds
- 93po 3y agoSo is the argument better for software you actually pay money for versus free services?
- dpifke 3y agoI think the argument is that there are almost always conditions attached beyond just the cash purchase price, and you're supposed to evaluate those conditions as part of the price. When I bought my home, I didn't negotiate the price with the sellers, but I did negotiate which repairs were to be completed (at the sellers' expense) prior to closing. To be fair, a lot more thought and time and emotional turmoil goes into buying a house than a $10/mo SaaS. But the basic principles of contract law are pretty similar between the two. The difference being that when buying a house, the seller will generally entertain counter-offers; when buying a SaaS product, competitors are the ones expected to have alternative (maybe better, maybe worse) offer terms. My libertarian take on this is that we should encourage more competition, so that more companies will compete on the basis of being consumer-friendly. Making it harder for consumers to buy products (through more onerous requirements in order to "accept" a ToS) makes it harder for smaller companies (who don't employ lots of lawyers) to compete, and inevitably leads to malicious compliance by the bigger players (e.g. EU cookie banners).