I tried to buy a new app this morning and the App Store gave me new Terms & Conditions. It showed me the new agreement starting with “Page 1 of 55” with arrow buttons to advance page by page through this legal document before I agree.
How do courts treat really long documents for common popular contracts? At one extreme, do they consider it fully binding? At the other extreme, do they discount Apple’s claim that millions of consumers read and understood fifty five pages of careful legal wording before making a ninety nine cent purchase?
I think that to understand the ramifications of this contract, I would have to ask my lawyer to go over it with me, and considering its length I would expect to pay several hundred dollars, perhaps over a thousand. Would a court maintain that the expectation of consumers would be that they have their lawyers review a fifty five page document before signing, and do this every time Apple announces a change in terms?
Or would a court be likely to say that this is obviously not a realistic expectation? Does making the agreement so long and complicated and detailed actually turn it into no agreement at all, such that a court would wind up deciding any eventual disagreement on the basis of reasonable expectations absent any agreement that the parties had all read and understood and agreed to?
If 55 pages is not too long, what about 500 or 5,000 or 50,000?
For the record, I’m not asking legal advice about whether to agree to this. I already made my choice. This post is just for the sake of curiosity.
This is not my area of law.
But as a general rule, my understanding is that such contracts are generally enforceable. However, the terms of the contract are construed strictly against the drafter in cases of ambiguity, and such a contract can be voided if it contains terms that are “unconscionable,” meaning that they are so one-sided that no reasonable person would agree to them.
They are generally known as adhesion contracts and, in addition to what Bricker said, I’d start you here if you were interested.
What if there is, buried on page 53, a clause that gives Apple (or whoever) the right to, say, add monitoring software to your computer and give access to the police, or TMZ or anybody? Would signing the agreement be binding?
Note: I never read these agreements.
That would almost certainly be construed as unconscionable in an adhesion contract.
Things have moved on a bit since Steven, especially in the context of EULAs. Basically, courts have construed some types of provisions in “clickwrap” contracts generously to the drafters (mostly forum selection and arbitration clauses) and others less so.
To expand a little on what Bricker said, there are two types of unconscionability: substantive and procedural. Substantive unconscionability refers to the actual contract terms, such as the “we can install whatever we like” clause suggested.
Procedural refers to the manner in which the underlying offer is accepted - undue influence, coercion, and so on. For example, if you order tickets via Ticketmaster it gives you a limited time to proceed through each screen before it “releases” your tickets. If TM was dumb enough to put a 5 minute time limit on accepting its EULA (which probably runs to dozens of pages) no court would enforce it. Steven is basically a procedural unconscionability case, though that term is never used: the policy owner didn’t have time to read the insurance policy.