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IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can make the screen go away temporarily, but there is no options to say "no, I disagree".

handoflixue 7mo ago
If you decline the new contract, you're entirely welcome to continue on the old T&C. Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too. So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates. > The company should not be able to change those conditions without my explicit permission. The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service. So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."
- deleted 7mo ago
  [deleted]
- qnleigh 7mo ago
  > If you decline the new contract, you're entirely welcome to continue on the old T&C. I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
  - handoflixue 7mo ago
    > I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to this up-front. What's the alternative? Force companies to offer indefinite contracts?
    - qnleigh 7mo ago
      I don't know where to draw the line, but if I buy a phone for $1000, I don't think the company should be able to change their terms of service on me the next day.
- shakna 7mo ago
  Clauses existing, have very little to do with it being enforceable. Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised. If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous. Notification alone, is not enough. Agreement is required.
  - handoflixue 7mo ago
    Again, the previous terms allow them to terminate the previous contract, and ... hey look, they're exercising their rights, listed in the original contract, which you did in fact agree to. If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.
    - shakna 7mo ago
      > Clauses existing, have very little to do with it being enforceable. You cannot cancel a contract for "any reason". In most jurisdictions that will be an unenforceable term. Usage here being consent, is an unpublished ruling. It does not set precedent, it refers only to these specific circumstances, where clients sought to understand terms before choosing to continue usage. Legally, usage with foreknowledge, is consent. Usage where you already agreed to terms implicitly, because you sought and understood them beforehand. It will not always be an agreement to new terms. > This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3
      - handoflixue 7mo ago
        The OP and I both explicitly cites their source for "usage + knowledge = consent", and it comes from fairly basic contract law. Are you saying this ruling cites another unpublished ruling or something?
        shakna 7mo ago
- IAmBroom 7mo ago
  > If you decline the new contract, you're entirely welcome to continue on the old T&C. Obviously never true anywhere on Earth.
close04 7mo ago
But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent. The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too). I have the same in the car. Been postponing for 2 years now. I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.
- Barbing 7mo ago
  >just send them a new T&C every day and say delivering the service is consent. That’s domestic terrorism (charges)
- Frieren 7mo ago
  > That for me is evidence that the law is made for the companies (probably by the companies too). Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
  - remus 7mo ago
    This is just the reality of the power asymmetry and is exactly the same for small company Vs big company. As a small company your business is just not worth that much to big company, so you choices are accept the terms offered or go elsewhere. Or, in an ideal world, there is a competitor who's found a space in the market offering better terms than big company.
- gopher_space 7mo ago
  Strike out the parts that you don’t like and email it to legal@ Include a cute little JavaScript cat animation to brighten their day.
impossiblefork 7mo ago
Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part. The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.
- lesuorac 7mo ago
  Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here. To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time. Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
  - impossiblefork 7mo ago
    >Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here. Yes, of course. We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
- victorbjorklund 7mo ago
  This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
  - impossiblefork 7mo ago
    That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract. If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.
carefree-bob 7mo ago
The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure. I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening. The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?
- Lyrex 7mo ago
  I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.
  - bux93 7mo ago
    Telcos and insurers (especially life, pensions) too. Not rocket science.
  - alistairSH 7mo ago
    That’s sounds reasonable for services-based consumer offerings. Which would include consumer SaaS services. Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.
user3939382 7mo ago
My Apple TV started doing this. New Terms, agree or “not now”. Ok how about never?
torben-friis 7mo ago
There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules. Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok. Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.
xhcuvuvyc 7mo ago
I got one of these on my tv. I returned it.
thomastjeffery 7mo ago
> that contract was made under existing T&C That's a very roundabout way of saying it. The T&C is a contract. They should not be able to pretend you agreed to a new contract.
downrightmike 7mo ago
break the screen
ratelimitsteve 7mo ago
this. was it LG that shipped an update to their TVs that made it play ads and bricked the TV if you didn't agree?

handoflixue 7mo ago

If you decline the new contract, you're entirely welcome to continue on the old T&C. Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too. So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates. > The company should not be able to change those conditions without my explicit permission. The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service. So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."

deleted 7mo ago
[deleted]
qnleigh 7mo ago
> If you decline the new contract, you're entirely welcome to continue on the old T&C. I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
- handoflixue 7mo ago
  > I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to this up-front. What's the alternative? Force companies to offer indefinite contracts?
  - qnleigh 7mo ago
    I don't know where to draw the line, but if I buy a phone for $1000, I don't think the company should be able to change their terms of service on me the next day.
shakna 7mo ago
Clauses existing, have very little to do with it being enforceable. Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised. If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous. Notification alone, is not enough. Agreement is required.
- handoflixue 7mo ago
  Again, the previous terms allow them to terminate the previous contract, and ... hey look, they're exercising their rights, listed in the original contract, which you did in fact agree to. If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.
  - shakna 7mo ago
    > Clauses existing, have very little to do with it being enforceable. You cannot cancel a contract for "any reason". In most jurisdictions that will be an unenforceable term. Usage here being consent, is an unpublished ruling. It does not set precedent, it refers only to these specific circumstances, where clients sought to understand terms before choosing to continue usage. Legally, usage with foreknowledge, is consent. Usage where you already agreed to terms implicitly, because you sought and understood them beforehand. It will not always be an agreement to new terms. > This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3
    - handoflixue 7mo ago
      The OP and I both explicitly cites their source for "usage + knowledge = consent", and it comes from fairly basic contract law. Are you saying this ruling cites another unpublished ruling or something?
      - shakna 7mo ago
IAmBroom 7mo ago
> If you decline the new contract, you're entirely welcome to continue on the old T&C. Obviously never true anywhere on Earth.

close04 7mo ago

But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent. The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too). I have the same in the car. Been postponing for 2 years now. I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.

Barbing 7mo ago
>just send them a new T&C every day and say delivering the service is consent. That’s domestic terrorism (charges)
Frieren 7mo ago
> That for me is evidence that the law is made for the companies (probably by the companies too). Yes, everything is becoming more and more convenient for big corporations while individual citizens need to navigate an ever increasingly complex world. Laws are designed to protect capital not individual citizens nor society. That never ends well.
- remus 7mo ago
  This is just the reality of the power asymmetry and is exactly the same for small company Vs big company. As a small company your business is just not worth that much to big company, so you choices are accept the terms offered or go elsewhere. Or, in an ideal world, there is a competitor who's found a space in the market offering better terms than big company.
gopher_space 7mo ago
Strike out the parts that you don’t like and email it to legal@ Include a cute little JavaScript cat animation to brighten their day.

impossiblefork 7mo ago

Here in Sweden the thing that makes something a contract is that you can't change it-- that it has definite provisions that have been agreed and that both parties actually expect the other to hold up their part. The US breaking its contract law to treat non-contracts as contracts is one of the most insane things I've seen a legal system do to itself.

lesuorac 7mo ago
Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here. To me the insane part is that contracts don't have to be registered with the courts (or some qualified third party) ahead of time. Like each party could show up with their own piece of paper (or not be able to provide it). Which is largely the issue here in that one party is showing up with a 2021 document and the other a 2023 document.
- impossiblefork 7mo ago
  >Presumable in Sweeden you can agree to new contract that supercedes the current one? That's all that's (argueable) happening here. Yes, of course. We don't have any rules about contracts needing to be written down or registered or anything of that sort. Even verbal agreement are valid, and you are entering into simple contracts even when you buy something in a store.
victorbjorklund 7mo ago
This is not true. It is 100% possible to write a contract in Sweden where one of the paragraphs says that you can change it in this and that way. And if we're talking about business to business contracts, it will probably in almost all cases be enforceable, even if you're writing that one party can just announce changes. In fact, I think most business to business contracts have some kind of clause specifying that it is possible to raise prices or change certain things.
- impossiblefork 7mo ago
  That absolutely isn't true. You can enter into agreements about how to form a contract, but a contract is definite, completely specific, with no changing provisions. That's what makes it a contract. If you have an agreement that says one party can announce changes, you don't have a contract, because those changes were not agreed to.

carefree-bob 7mo ago

The other side of this is that companies do want to change their T&C from time to time, so what do they do, force you to quit and then sign up again? That adds a lot of friction. Or do they tag things and say "Customer X signed up on this date, so he is bound by T&C number 12, whereas this other customer signed up a year later and is bound by T&C number 13". That seems unwieldy since there is a common infrastructure. I get emails from time to time that "Policy X has changed and will take a effect in X weeks" so at least I'm given advance notice, and am basically OK with that approach as long as the changes are spelled out clearly and not hidden in hundreds of pages of legalese. Maybe an LLM would help here, and translate what the new changes in terms really means so I can decide whether to continue with the service or not. In general I'm OK as long as I'm given enough notice and it's clear what is happening. The same thing happens with pricing. What does a company do when they want to increase rates, or change their products? They send out a notification that starting on a certain date, the prices will go up. I don't think anyone objects to that. How is a T&C change different?

Lyrex 7mo ago
I work for a digital bank and the versioning is essentially exactly how we handle T&Cs. The user accepts a certain version of some terms, and if we launch for example a new product that requires changed T&Cs then we ask the user to accept them if they want to use the new product. If they don't, well, then they just keep using the existing offering without accepting any new terms.
- bux93 7mo ago
  Telcos and insurers (especially life, pensions) too. Not rocket science.
- alistairSH 7mo ago
  That’s sounds reasonable for services-based consumer offerings. Which would include consumer SaaS services. Where it gets a little muddy for me is hardware with services attached (a new EV, etc)… you pay $60k for a car, it really shouldn’t be possible to force a new ToS on something they has physical ownership. And definitely not possible to brick or de-option the car due to refusal to accept new ToS.

user3939382 7mo ago

My Apple TV started doing this. New Terms, agree or “not now”. Ok how about never?

torben-friis 7mo ago

There is a strange phenomena where introducing tech makes people suddenly blind or numb to established rules. Can you imagine buying a car in the seventies and a month later finding a technician under your parked car making adjustments to it? You’d kick them out and call the police. But put an internet connection in between and it’s ok. Same goes for wiretapping (compare Nixon vs current state), unlicensed hotels and cabs being ok when booked by an app, and so on.

xhcuvuvyc 7mo ago

I got one of these on my tv. I returned it.

thomastjeffery 7mo ago

> that contract was made under existing T&C That's a very roundabout way of saying it. The T&C is a contract. They should not be able to pretend you agreed to a new contract.

downrightmike 7mo ago

break the screen

ratelimitsteve 7mo ago

this. was it LG that shipped an update to their TVs that made it play ads and bricked the TV if you didn't agree?