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In France we have this concept, in most cases, that a contract cannot force somebody to accept a lower amount of rights than the general population. So for exam

In France we have this concept, in most cases, that a contract cannot force somebody to accept a lower amount of rights than the general population. So for example if my employer makes me sign a working contract with illegal clauses (say, not enough pay leaves, or below minimum-wage salary), then they are at risk of a lawsuit even though I signed it (in fact they increase their own risk by emitting such contract in the first place). I wonder how that would apply to general conditions that we "accept" just to get rid of the annoying popup. I mean obviously they won't be able to enforce something like "you accepted to give us 100k/year by clicking << consent >>" but there should be some sort of framework of what is acceptable to contest as a user.

travisjungroth 2y ago
A lot of contract terms are signing away rights. Like if you give up an easement, you’re signing away your right to use that property. So immediately there’s a question of “which rights can you sign away?”. I think rights the general population looks like a good reference. The general population doesn’t have a right to use that property. There’s a real problem that so many companies are requiring customers sign away rights, like arbitration clauses where you sign away a right to a trial. Normal market forces aren’t working here. Lots of companies that do this have restricted competition because of government regulation (phone companies). Also, any time the cost is rare but high (most people won’t sue their phone company) the cost is undervalued by consumers. Throw in some monopoly power and you end up in a situation where consumers can’t get essential services without signing away rights, which means those rights don’t really exist.
- kome 2y ago
  Yes, but you are not addressing the central claim of the previous comment, which is why private contracts can go above than public law in the US. It's frankly very weird.
  - travisjungroth 2y ago
    I don’t understand. What claim in the previous comment are you referring to? Can you quote it?
BlackFly 2y ago
In the EU such clauses are voidable under the Unfair contract terms directive. Basically any contract term that creates a high imbalance between the rights and obligations favoring the business in the face of the customer is considered to be unfair. The directive gives non-exhaustive examples which, apropos, includes: > excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract. Meanwhile, the EU provides arbitration services and suggests in most legislation that users take advantage of it instead of always going to court, but obviously forcing people into arbitration instead of courts produces bad incentives. In the US, it seems to incentivize arbitration to favor the people bringing the business. In the EU, you should mostly just favor it for the speed.
FireBeyond 2y ago
> In France we have this concept, in most cases, that a contract cannot force somebody to accept a lower amount of rights than the general population Washington state has something similar in landlord tenant law for renters - there are several livability/QOL/basic needs (and a few others that fall less into these categories but that have been habitually abused) that "cannot be waived" in a rental agreement, even with specific consideration. (i.e. even if I offer you $100/month less on your rent to sign the waivers, you still cannot - well, you can sign, but you still have those rights).
JumpCrisscross 2y ago
> there should be some sort of framework of what is acceptable to contest as a user There broadly is. A 1925 law puts arbitration in a special bucket [1]. There appears to be bipartisan interest in reform [2]. Put another way, absent the FAA, this language would have likely been struck down. [1] https://en.wikipedia.org/wiki/Federal_Arbitration_Act#Proposed_reform https://en.wikipedia.org/wiki/Federal_Arbitration_Act#Propos... [2] https://en.wikipedia.org/wiki/Forced_Arbitration_Injustice_Repeal_Act#Legislative_history https://en.wikipedia.org/wiki/Forced_Arbitration_Injustice_R...

travisjungroth 2y ago

A lot of contract terms are signing away rights. Like if you give up an easement, you’re signing away your right to use that property. So immediately there’s a question of “which rights can you sign away?”. I think rights the general population looks like a good reference. The general population doesn’t have a right to use that property. There’s a real problem that so many companies are requiring customers sign away rights, like arbitration clauses where you sign away a right to a trial. Normal market forces aren’t working here. Lots of companies that do this have restricted competition because of government regulation (phone companies). Also, any time the cost is rare but high (most people won’t sue their phone company) the cost is undervalued by consumers. Throw in some monopoly power and you end up in a situation where consumers can’t get essential services without signing away rights, which means those rights don’t really exist.

kome 2y ago
Yes, but you are not addressing the central claim of the previous comment, which is why private contracts can go above than public law in the US. It's frankly very weird.
- travisjungroth 2y ago
  I don’t understand. What claim in the previous comment are you referring to? Can you quote it?

BlackFly 2y ago

In the EU such clauses are voidable under the Unfair contract terms directive. Basically any contract term that creates a high imbalance between the rights and obligations favoring the business in the face of the customer is considered to be unfair. The directive gives non-exhaustive examples which, apropos, includes: > excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract. Meanwhile, the EU provides arbitration services and suggests in most legislation that users take advantage of it instead of always going to court, but obviously forcing people into arbitration instead of courts produces bad incentives. In the US, it seems to incentivize arbitration to favor the people bringing the business. In the EU, you should mostly just favor it for the speed.

FireBeyond 2y ago

> In France we have this concept, in most cases, that a contract cannot force somebody to accept a lower amount of rights than the general population Washington state has something similar in landlord tenant law for renters - there are several livability/QOL/basic needs (and a few others that fall less into these categories but that have been habitually abused) that "cannot be waived" in a rental agreement, even with specific consideration. (i.e. even if I offer you $100/month less on your rent to sign the waivers, you still cannot - well, you can sign, but you still have those rights).

JumpCrisscross 2y ago

> there should be some sort of framework of what is acceptable to contest as a user There broadly is. A 1925 law puts arbitration in a special bucket [1]. There appears to be bipartisan interest in reform [2]. Put another way, absent the FAA, this language would have likely been struck down. [1] https://en.wikipedia.org/wiki/Federal_Arbitration_Act#Proposed_reform https://en.wikipedia.org/wiki/Federal_Arbitration_Act#Propos... [2] https://en.wikipedia.org/wiki/Forced_Arbitration_Injustice_Repeal_Act#Legislative_history https://en.wikipedia.org/wiki/Forced_Arbitration_Injustice_R...