So these gigantic legal agreements we sign by clicking “Yes” or “No” before we install games, or join newsgroups or any one of a hundred other electronic activities… I’m assuming I’m not the only one who has NEVER read the documents. How legally binding is it to click “Yes”? Couldn’t I theoretically be agreeing to anything at all? Could I find myself conscripted to fight in the Iraqi army in 14 years’ time, having unknowingly claimed citizenship? Or something like that?
Funny this should come up right now. Not ten minutes ago, I was installing the software for a digital camera. I found it amusing that the instructions told me to click “YES” when this page appeared without instructing me to read the agreement first.
I wonder what affect that could have on the enforceability of the contract.
In that case, couldn’t it be argued that you pushed yes because it told you to, not because you agreed to the terms of service?
Gee, I didn’t know the software wasn’t supposed to be copied. What? it was in the terms of service? I wasn’t supposed to read that. It just told me to click yes…
Contracts of this sort are normally construed strictly against the drafter of the contract. Any ambiguity is construed in favour of the “clicker.”
The courts have recognized that there is a substantial inequality of bargaining power, and that the “clicker” has had absolutely no input in the drafting of the terms of the contract. They take the view that if the drafters of the contract made a goof, then tough nouggies. If the drafters couldn’t get it right, with all the suits they’ve hired, they’ve got no grounds for complaint if the ambiguity is resolved for the “clicker.”
As for when a completely unusual term, that couldn’t be anticipated, is included in the reams of legalese, the courts’ approach varies. Whether such a clause is binding will depend very much on the facts, the relative positions of the individuals, and the nature of the contract. It also will depend on the law of the particular jurisdiction.
There’s a famous statement by one judge (I think by Lord Denning), talking about an extremely unusual term of a standard contract, in which the judge says something like: “This term could only be considered enforcable if there was a red hand printed in the margin, pointing to the clause.” However, that could just be Lord Denning’s usual hyperbole.