This was a topic we glazed right over in class, but one I don't think should be allowed to be. The point Professor Tresan made was that there are contracts that we don't read but agree to nevertheless, and that because of that we shouldn't be held to them. I don't think that's quite true. I have two examples to illustrate why, and some additional reasoning of my own.
First, Professor Tresan mentioned specifically how most people don't read the Terms of Service, and as such, we shouldn't really hold ourselves to the contract otherwise created by clicking the "I agree" box. Well, a while ago (I apologize for not having an exact date), a customer who was installing a PC Pitstop program read the EULA (end user license agreement, which is essentially the same as terms of service, and you still have to click "I agree") and found in there a clause that said if they e-mail the company, they'd receive a $1,000 check. The person did so, and received that $1,000 check.
Now the point of this example is if we can expect to hold companies to anything they say in these "generally not read" contracts, why is it they can't expect us to be held to them? That seems hypocritical and completely contradictory; for one party to have to agree to a contract but the other to be allowed to ignore it doesn't make sense, and shouldn't be allowed.
The second example spawns from the same point Professor Tresan made, but a different part of it. He went on to say we shouldn't hold people to whatever is in the terms of service *because it is generally understood that no one reads them.* This seems extremely problematic.
An example: when congress received the official intelligence report for whether or not there are weapons of mass destruction in Iraq, ONLY ONE CONGRESSPERSON READ IT. The rest of them had their secretaries or someone else that works for them read it, then brief them on it. Now, in that intelligence report was a disclaimer that said something along the lines of "It is my professional conclusion that based on all intelligence gathered, it is highly unlikely that there are WMDs in Iraq." (The reason that was JUST a disclaimer was because of the actual project and how it was worded; the analysts were told to "Find evidence that there are weapons of Mass Destruction in Iraq" instead of "Collect intelligence to see if there are WMDs in Iraq or not," so everything that followed the disclaimer was whatever evidence could be found to prove there are WMDs.) That ONE Congressperson that read it voted against the war in Iraq. We all know how that war turned out.
Now, I'm inclined here- and I believe with good reason- to say that Congress did something wrong here. I'd charge that they failed to do their duty, and that they should face some sort of consequence for it (maybe it's outdated now, but then they SHOULD HAVE). But almost no one read the report, but instead got briefings. It was generally understood that almost no one was reading it, and instead getting briefed on it, So, if the claim made in class is correct, then they shouldn't be held to having to read that intelligence report, and so they did nothing wrong by not reading it which led them to vote to go to war. This line of reasoning shouldn't stand.
For my own reasoning: the fact that you (and most people) simply didn't read it doesn't grant any immunity. That's why there are lawyers to make sure contracts are read and understood- because the contract is supposed to be binding whether read or not (as long as it is agreed on and consented to). So, if it's available to you, and you agree, it should be binding no matter how many people do or do not read. The fact that a person doesn't read it is no one's fault but their own. They are still giving consent by clicking "I agree," and thus should be held to what is explicitly said, even if there seems to be an implicit consensus that most people haven't read it.
I'm interested to see how others think.
I'm not sure that my understanding is correct, but I'm fairly sure his claim was not that such contracts should be entirely null and void. I believe his claim was that you should not be held to unreasonable requirements or penalties enumerated in such contracts. For example if Apple were to levee a $500 fee on you if you jailbroke your iPhone that would be considered unreasonable. There is legal precedent which suggests such a clause would not be upheld in court. However, the standard components of a ToS or a EULA such as those involving collection of your data would not be ruled unreasonable by the "reasonable person standard". What should be considered reasonable and unreasonable is certainly a matter of contention and as such it is settled by the courts and thereafter becomes common law.
ReplyDeleteI'd ask you if it's right or reasonable for someone who's uneducated, or not well read, or otherwise incapable of reading/fully comprehending the terms of agreement statement to be held to the box they checked. If someone wants to buy almost anything, or install any software, they need to check that box. Would you have them only be truly honest when they read the terms of agreement? I think it would be fine for them to lie and check the box, at least in a situation in which there were numerous other people to already buy the software who would have had to face any malicious hidden pieces of the terms of agreement already. Maybe if the person is offered a unique one-time deal and has to read the terms of agreement, it's wrong for them to lie and not read it, and they should face the consequences of their checked box. But in the general case, I think it's limiting and unjust to assume that people actually read the terms of agreement. It's not taking human nature into account. For high up or strictly legal practices, I have no problem with it but it's common knowledge that no one reads terms of agreement, and that's when you know something's wrong.
ReplyDeleteIm curious as well what you think about this Steven, because your post reminds me of bank lending. Many people think that banks are in the wrong for predatory lending, even though the borrower had to review the contract before agreeing. By your post I'd guess that you would say that it is too bad for the people who didn't read the contract, but your general political presence leads me to believe that you wouldn't approve of predatory lending. I'm no expert, but the way I understand it now is that banks determine the "worthiness" of someone's financial potential and then give them an appropriate sized loan. But where things get sketchy is when the government insures the bank against losses, enabling the banks to be more reckless in who they loan money too and how much, since the government will pay for it. Who is in the wrong here?
ReplyDeleteI genuinely think, for any given contract, if one agrees to it, they are bound to its contents, no matter whether they read it or not.
ReplyDeleteI do also agree that it is unethical for businesses/lawyers/banks/whoever to take advantage of this and include outrageous stipulations, but that's a separate matter. It would be wrong for them to do this, but as it's the case that they do it, we should be smart enough to read them through and KNOW WHAT WE'RE AGREEING TO.
After all, if I make an agreement with someone, I expect them to stick to it. Now, there are good reasons not to (such as absurd examples like "By signing this you agree to let me kill you at any given time" etc.), but I still expect that. If not, we lose a sense of responsibility and encourage carelessness- which is a bad thing.