Comment by version_five
3 years ago
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.
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.
> 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.
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?
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.
> 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.
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.
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.
Any real-world examples of this being achieved in any business domain and jurisdiction?
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
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.
Thanks for the reminder. UCC recently introduced Article 12 which covers digital assets like CBDC and cryptocurrency via the category of CER (controllable electronic records). Article 12 says that custody/control of a private key plays a prominent role in seniority of claims against digital assets, including scenarios involving the purchase of possibly-stolen digital assets.
https://www.clearygottlieb.com//news-and-insights/publicatio...
> Article 12 – dealing directly with the acquisition and disposition of interests (including security interests) in “controllable electronic records,” which would include Bitcoin, Ether, and a variety of other digital assets. Under Article 12 and associated amendments to Article 9, a party may perfect a security interest in certain controllable electronic records by obtaining “control” of such records. In addition, Article 12 confers an attribute of negotiability on controllable electronic records – a good faith purchaser for value who obtains control (a “qualifying purchaser”) takes its interest free of conflicting property claims.
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.
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This also implies the drawback of doing it this way: The UCC is created by private entities and then legislatures are pressured to adopt it as-is "for uniformity" even though they were the ones elected to set government policy and not the drafters of the UCC.
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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.
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.
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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.
I believe Texas is like this as well [1].
https://eforms.com/rental/tx/texas-standard-residential-leas...
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.
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.
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.
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You never used to need a lease to rent an apartment. Also, purchasing is a form of implied standard contract
Medicare supplement policies. Those are rigidly standardized. Insurers hate that, because all they can do is compete on price.