If I buy a software, and in the software there is an agreement that says that by installing the software I agree to this and that. I’ve heard court will agree that the agreement is binding.
I forget the case. It’s some guy versus Dell. That guy claimed that he shouldn’t have agreed to the agreement because he doesn’t read it after opening the product and the court argues that because the agreement is there it’s his fault that he didn’t read it.
Now, imagine if I look at website. If it says that by entering this website you agree to be my sex slave and you enter my website, does that hold out?
Another use: What about if we put a sign on our door. That stealing means agreeing to commit suicide?
Some people in newsgroup laugh at me. He said that no matter what sign you put in front of your door the thief can simply says that he never agree to commit suicide and a contract is not formed.
Well, recently I see sign in some shops. Breaking means buying. If someone enter the shop and break something, can the shop owners argue that by entering the shop he agrees to the term?
That’s not all, I see in another shop a sign that “stealing” means paying 1000 times. If someone steal from the shop and get caught will the court held that by entering the shop the thieves agree to the terms mentioned?
Finally, why don’t we all put signs in front of our car and houses that stealing means something horrible and we’ll get extra punishment for whichever assholes screw our properties?
There’s two points to be made here, I think. One is contract legality. This is the idea that a contract that is formally agreed on by both parties is legally unenforceable because of the substance of its terms. I think that contractual clauses involving sexual service are probably illegal because of prostitution laws, and clauses requiring suicide are probably also null and void. I don’t really see anything about the other terms that makes them obviously illegal, but a case could probably be made that they’re so extreme that a particular person didn’t take them seriously, or some other line of argument.
The other point is that aside from the party offering the contract, there needs to be some reasonable ‘checkpoint’ that the other side makes to agree to the contract. Clicking ‘I agree’ in an end-user-licence-agreement box or a website portal probably meets this, but all of your ‘posting a sign’ examples seem to be missing it, at least as you’ve explained them.
But - if the sign is on a door, and it says, "By pressing the ‘open door’ button / turning the doorknob, you affirm your agreement to the following terms…’ then that might be a start. (It doesn’t cover you if somebody else holds the door open for the guy though.)
Yes. A contract for an illegal act is not binding.
Also, in some states (New York, for instance) any clauses in a contract that specifies a penalty are unenforceable. There are ways to enforce a penalty (It’s called “liquidated damages”), but you cannot have a blanket penalty that is unrelated to the damages that might have occurred. Thus, you can’t ask someone to pay a reasonable estimate of any damages that might occur. The cases you give would fail this test, even if the act weren’t illegal.
So, by entering you agree that stealing means paying 1000 times is not enforceable unless we can show that damage is actually indeed 1000 times.
Something like that?
Well, another interesting question is whether that will deter thieves.
I mean it seems that it takes some fine hair splitting to figure out that it’s not enforceable. Beyond the law skills of most thieves. Will putting stealing means paying 1000 times deter thieves?
Unilateral contracts (ie., non-negotiable, “take-it-or-leave-it” agreements such as leases) are generally construed in favor of the consumer in civil litigation. Plus, courts can nullify “unreasonable” contract provisions if they so choose, in many cases.
My idea of putting sign that stealing means paying 1000 times is not too crazy after I think about it.
The thief can claim that he disagree.
There was a case where a consumer of bought computer claimed that he didn’t read the contract listed in the computer packaging (It’s DELL against something I am trying to find out). Court says because the contract is there, it’s still applied. If customers do not like it, he could have simply returned the computer. Otherwise, no term of service will be included in the box.
Statements like "By … " you agree to “…” does have bites.
Exit clause restrictions must be “reasonable”. I don’t know. What’s reasonable?
My exit clause for not getting out of my premise withing the due date is $50 a day, while the rent is only $6/day (paid yearly). Obviously the failure to get out early term is “excessive”. However, if I don’t like it, I just don’t rent it. All I can do is to rent it and be careful to get out before overdue. Now it causes a small issue because my wife is scheduled to have her baby around the time of the exit. That means I may have to get out of my place a month in advance of the rent due. Keep staying in overdue premises is of course illegal (trespassing, etc.)
The same way, if a potential person do not like paying $ 1 million dollar fine if he takes anything from my place without paying, then don’t enter my door. If he want to enter my door, he simply should do his best not to take anything before paying.
Stealing is illegal and hence cannot be part of a contract. Whew. This is a tough one. An act is protected from adverse legal terms BECAUSE it’s illegal. It’s like tax in http://boards.straightdope.com/sdmb/showthread.php?p=10566392#post10566392 . But boy, it’s going to be very arguable I guess.
I don’t think you need a sign at all for this one. You would certainly be on the hook to the merchant for his cost, if not retail price with or without a sign.
Most stores that sell software only accept returns on unopened packages. If I buy software, I don’t see the UAL until I’ve installed the software and started up the program. Doesn’t the agreement between me, the store and the software manufacturer, involving me paying for the software, also constitute an agreement? I supply money, they supply software. Why does the UAL, which can’t be viewed until I’ve voided my ability to return the software, trump the agreement to sell me software?
In Germany, many stores have a sign that any kind of theft (regardless of the cost of the item) incurs an automatic fine of 50 or 100 Euros. They claim that this is the cost for the detectives and/or camera and other security system in place to prevent theft. Apparently it’s legal (I never ran afoul of it, but I haven’t heard it being challenged in court).
I could certainly see the argument being made that if you hadn’t broken the item, he would have sold it for retail cost (this is not an unreasonable assumption), therefore he is out the retail value.
My exit clause for not getting out of my premise withing the due date is $50 a day, while the rent is only $6/day (paid yearly). Obviously the failure to get out early term is “excessive”. However, if I don’t like it, I just don’t rent it. All I can do is to rent it and be careful to get out before overdue. Now it causes a small issue because my wife is scheduled to have her baby around the time of the exit. That means I may have to get out of my place a month in advance of the rent due. Keep staying in overdue premises is of course illegal (trespassing, etc.)
The same way, if a potential person do not like paying $ 1 million dollar fine if he takes anything from my place without paying, then don’t enter my door. If he want to enter my door, he simply should do his best not to take anything before paying.
Right idea, but I’d suggest the wrong terminology. You’re confusing a unilateral contract with a standard form contract. Ambiguities in standard form contracts are indeed often resolved in favor of the person who did not draw up the contract (the contra proferentum principle). Usually, this is the consumer, but it need not always be.
A unilateral contract is a slightly different beast. In a unilateral contract, an offer is made to the world (“I’ll pay $200 to whoever finds my lost dog”); and a contract is only formed when somebody performs the task stated. You make the above statement, and I have no claim to your $200 unless and until I find and return your dog. In other words, you’ve stated your offer and the consideration you’re willing to put forth ($200), and you’ve stated the consideration I must put forth (finding and returning your dog); it’s up to me to accept your offer and complete the contract by performing the task you’ve stated as my consideration. It’s not quite as obvious as two parties hammering out a contract across a negotiating table but we still have offer + acceptance + consideration = a contract.