1 - Am I guilty of a crime when I get a new application for the computer and click the ‘I have read, understand, and agree to these terms of use’ when I have not read them?
2 - Does anyone actually read all of them?
3 - What would happen if Microsoft put something in there like ‘You will give your first born son to the Microsoft Corporation.’ If everyone checked the ‘I have read and agree to these terms’ would that hold up? If not, than what is the point of the agreement?
4 - In general, if the bank or anyone gives you a contract, would you be allowed to cross out portions of it and then sign it? Maybe you don’t agree with the part about you paying them interest on your credit card. If you strike this portion from the contract and sign it, would you get away with it?
On point 4, you might get away with handing it to your banker with sections crossed out. He might not notice that.
I can assure you, however, that the first time you asserted your privileges under the “struck out” version of the contact, the bank would exercise its option to close your credit card. Bankers are not fond of creative customers, as bankers have been left holding the bag by creative customers since bible times.
Also note that if the “struck out” version of the contract is so hopelessly unfair to one side or another as to be wholly one-sided, a judge may choose to modify or void the contract. An example of something that might make the judge do this would be you striking out the part where you are obligated to repay the bank… without that clause, it’s not a contract, it’s just bloody thievery.
Disclaimer: I’m not a lawyer. I’m probably wrong on everything I wrote above. If a lawyer tried doing my job, I’d be surprised if he was able to get even part of it right. If you plan on doing this in real life, and not just on paper, you may be well served by consulting an attorney licensed to practice in your jurisdiction and competent to practice in this area of the law.
IANAL (I’m not even an American); however it’s my understanding that when you click that button you ARE agreeing to the terms - you said you read and understood them, so you can’t later claim you didn’t. It’s the same with paper contracts. I seem to recall that there has been the very occasional case with paper contracts that particularly nasty terms that are buried in fine print have been thrown out by the courts, but that’s not common. However, I don’t believe it’s a crime to say you read something that you didn’t; you’re just bound to it as though you had read it.
Not that I know of. You’re stating that you’ve read and agreed to be bound by the terms. Not reading them isn’t a crime, but you’ll be bound by them in any case and going “I didn’t read them” is no defense as you already stated you did.
Private software users ? Probably not. Companies and people using the software for commerical purposes ? Probably. For example I read through the entire agreement of a piece of software the other day so the company I work for could decide how and what they could legally use it for.
Technically it would be binding, but I’m guessing it would be thrown out as it’s illegal under some other laws. You can’t, as far as I know, make a contract the forces one or more parties to break the law.
Companies can, and do, put interesting clauses in the EULAs. Particularly sneaky websites which have something in the agreement to the effect of “By clicking Yes below or by using the software you agree to allow AssControl ™ software to record everything you do and report back to the mother-server so that we may send you and your extended family mass amounts of spam.”
There are other underhand tricks that are used. These are slightly more difficult to argue against 'cos you did agree to it and it’s not that unreasonable (if the ads are the revenue stream for the software).
I don’t know off hand if any EULA cases have gone to court, but it’s a matter of time before a company tries to enforce a EULA clause or a user tries to escape one.
Not a crime in any jurisdiction im aware of. It is a matter of entering a civil law contract and your decision to accept the terms without reading them is still fine. You still are bound by the terms.
Well ever since I did my contract law module, Ive started reading all sorts of legal notices and licences and so I tend to read the click through licenses on software as well. I dont think any normal people would without compelling reason.
In the EU, this is governed by the Unfair Terms In Consumer Contract Regulations. Basically you could ignore the term that was so blatently biased as long as the term was demonstrably unreasonable and not to do with the core matter of the contract. Unreasonableness is determined by any list of factors that the court deems relevant but examples are relative bargaining power [here 0] and the ability to negotiate the terms of the contract [Again 0 here]. The court presumes that you would at least know the core matter of the contract. In this instance if you thought it was unreasonable for windows to install say windows messenger despite it being a part of windows, that would not fly. A contract to do something illegal would likely be unenforceable in any jurisidiction of course.
In England and Wales this would constitute a counter offer and a contract would only be validly concluded when the bank agrees. I doubt that you would get away with it though, for the reasons mentioned above, and that the bank employee would probably not have the power to enter into contracts on the banks behalf on anything but the banks standard terms of business.
Of course this has to be all qualified, that a) This is true only for England and Wales, b) IANAL just a law student c) Software EULAs can be treated slightly differently and dumped into different contract classifications depending on who you ask. While the principles may stay roughly the same, the US has less consumer protection legislation generally then the countries of Europe, so the outcome there may be substantially different.
Contracts are civil, not criminal. You are not guilty of any crime if you say you read a contract when you really didn’t (assuming of course that you’re not under oath when you say it, in which case you could be nicked for perjury).
In the United States the 13th Amendment to the Constitution forbids involuntary servitude and various statutes make it illegal to own people, therefore the contract term would be void on its face. Generally contracts will have severability clauses, meaning if one part of the contract is found to be unenforceable (as this would be in most countries) the rest of the contract remains in force to the extent possible without the voided clause.
The purpose of the agreement is to strip you of as much recourse to remedy as possible.
As noted, this is a counter-offer which the bank would need to accept. Their acceptance would most likely be signified by their sending you the card. If you try it, be sure you keep a copy of the altered agreement and let us know how it works out for you.
What if the fine print was totally legal, but still outrageous? For example, something like ‘if you use windows for more than 5 hours a month, you have to pay Microsoft a fee of $1,000,000.’
Obviously, it wouldn’t take long until some consumer group read the agreement and it would make HUGE news, but what if you had already checked the I agree box? Would you have to pay, or would the courts side with you when you argue that it is unreasonable to expect your average consumer to read 50 pages of fine print and that a fee of this kind on a $200 product is unexpected and unreasonable.
I’m sure you could find a judge that would find such a contract provision to be contrary to public policy or some such other rationale for declaring such an outrageous provision unenforceable. I don’t think there’s a judge around who would let something like that stand.
Interestingly, this answers an OP I once made to GQ that was ignored completely.
I’ve been thinking this over recently (the bloodthirsty EULAs, that is) and the notion of a judge declaring parts of a contract too severe to enforce is interesting. I always thought that a contract is either void in toto (that is, one or more of the parties cannot form consent, or it is a contract that is wholly about an illegal act), void in part (due to that clause being prima facie illegal), or completely valid and binding, no matter how unfair the binding parts are. Obviously, there was a gray area (a clause or contract being technically binding but de facto unenforcable due to a judge’s ruling) I didn’t know of.
About the legal age of consent: If a 12-year-old buys a video game with a EULA (clickthrough or shrinkwrap) and later violates that contract, what recourse does the other party have? Assume that in the relevant jurisdiction, 12 is too young to be party to a binding agreement.
I can only add something about German law.
The German civil code includes a chapter (sections 305 through 310 dealing specifically with standard form contracts, stating which regulations would be valid and which ones void. One of those sections provides:
I think those examples would meet the requirements of being sufficiently unusual.