Comment by otterley
1 day ago
That’s not an “I didn’t read it” defense. That’s a “term is this contract is unconscionable” defense. They’re not the same thing. I was speaking strictly of the former.
Also, striking an unconscionable term typically does not void the whole contract. Just the term in question.
As a general rule I believe many online terms of use, eulas and similar online contracts are examples of procedural unconscionability, in that length is often too long that one can be expected to read it in the day to day action of "surfing the web", I believe this is also the opinion of the EU and many of its member states, hence the limitations found on enforcement of such contracts.
Aside from that many of these contract have terms that might be considered substantive unconscionability - for example if terms state that what you post can be used by the company that owns the service for marketing of the company or the service I feel this would not make it through most legal systems that I feel before the attempt are not inherently corrupt.
I would personally be shocked if the EU voids click-wrap agreements for unconscionableness based on the process alone. I’m not super familiar with EU law; is that what it truly says? I rather doubt it because I do business in the EU and have been asked to agree to terms as a condition of making purchases online there.
Online retailers in the nordics occasionally try to post terms and conditions that contradict consumer protection laws, for instance retailers being on the hook for warrantying product(ion) defects for 5 years after purchases of products that ought to be durable, like electronics. The retailers win out on a substantial amount of the population not contesting it, but if you as a consumer go through the process the findings is basically always in your favor, despite there being agreements to something else. Telecommunications providers also have a long history of having their consumer invoices being voided for being unconscionable despite service agreements, especially in cases with children playing with devices (but otherwise also), going all the way back to the landline age.
2 replies →
The council directive on unfair terms in consumer contracts puts every pre-canned contract in scope, and unfair provisions on a contract are rule non-binding (if the contract can keep existing after the unfair bits are taken out).
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...
1 reply →
No, it is literally ”I didn’t read the contract”. Let me guess you don’t have a law degree in Swedish law and you are just making statements on every legal system in the whole world?
Just read avtalslagen paragraf 30. It says just that. And it is different from paragraf 36.
I read it. The law expressed therein appears to be consistent with typical contract law in the West, including the UK (from which US law is derived) and other European countries. I don't see any major differences. (Also, I'm not sure why you brought up paragraph 30 as that is about fraudulent inducement.)
See also https://svjt.se/svjt/1959/497 "En person borde sålunda bli bunden av ordalagen i det dokument han undertecknat utan att äga att ursäkta sig med att han icke läst igenom dokumentet."
No, I have a Swedish law degree and you have totally misunderstood article 30 if you claim it is about unjust contracts. You are mixing it up with art 36.
You are referring to a 60 year article and the sentence you highlighted is NOT his opinion on the old contract law (the contract law currently in effect is from 2020) but rather he is explaining the opinion on German law from another person.
Of course you as an American sees no difference between contract law in continental European law and common law.
2 replies →
All of these cookie forms have the same set of toggles. At a high level all anyone is saying is that we should just declare any kind of tracking cookies unconscionable terms for this kind of dialog box. Caching, shopping carts, explicit log in, these are totally fine and you don't need a dialog. The tracking stuff is not that hard to define and it should just be declared unconscionable.
That's why billionaires don't buy their own dishwashers