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Comment by slededit | Hacker News Reader

You can make an unenforceable contract in good faith though. How would you protect those circumstances?

Maybe that's the wrong approach then. Contracts have effectively been weaponized by those who can afford lawyers against those who can't, with those who can't rarely ever benefiting from any sort of contract. Perhaps the solution is to just remove the problem. End contracts entirely between people who can and can't afford contracts.

That would make all sorts of services unavailable to the common person. Essentially if a direct and immediate exchange couldn't be performed the transaction can't happen. A contract is needed for any sort of debt. It could be as simple as putting down a deposit for a contractor to remodel a bathroom.

If large classes of business want to remain in business, they will find a way without such abusive terms.

A less severe change might make sense. Make it so that, when one of the parties involved in a contract is a person who can't reasonably expected to have a lawyer review the contract or who can't reasonably be expected to negotiate the contract, that the entire contract must consist of a series of clauses, all in plain English, all individually agreed to, and all directly relating to the transaction at hand and only the transaction at hand. And that, in such contexts, the party without a lawyer cannot indemnify the other party against anything and cannot waive their right to enforce any of their rights in court and/or with a class action lawsuit. [0]

This serves two purposes:

1. Reduce the degree to which fine print can hurt the party signing it in unexpected ways.

2. Make complicated contracts have a real cost in terms of making transactions more annoying. This gives businesses an incentive not to use them.

[0] The Wells Fargo fraudulently issued credit lines, for example, were protected a bit because most of the victims had existing arbitration agreements. Those should have been unenforceable because (a) they were not directly related to the fraudulent accounts and (b) Wells Fargo customers should not be able to waive their rights. Instead, CA passed a silly after-the-fact law that says, more or less, that banks cannot enforce arbitration agreements against their customers when fraud is invonved.

There is a doctrine for contracts that aren't considered "negotiable" where any ambiguity must be considered in favor of the weaker party. Of course this then makes it so the writer of the contract wants things to be explicit as possible. Quite the opposite of succinct and "plain" English.

Also the courts fundamentally consider arbitration to be the solution to the power imbalance problem. Its much less expensive and quicker for both parties. HN has the opposite impression of them, but that is the reason they are being pushed so hard.

The problem is that this precision comes at the expense of the vast majority of people’s ability to comprehend the agreements they are entering into. In these cases, I would argue the contracts should be void because there is no “meeting of the minds”. If someone doesn’t have a lawyer, they should not be bound by contracts that cannot be properly understood without a lawyer.

I think most people here are more than ok with Arbitration being an option, but what people here hate are the clauses in the contracts which require arbitration that is paid for by the company, essentially removing your right to redress in the courts.

non-binding arbitration wouldn't solve the power imbalance, as if the company loses they would file an appeal in court - and you'd have to pay or drop it. For it to work as intended it has to be binding.

The flip side is you can't go to court - but alas you couldn't afford to anyways.

I don't see the issue as being difficult or complicated - binding arbitration is fine and useful, as long as it is mutually agreed upon after the disagreement arises but before it is litigated.

The problem is being pressured to commit to arbitration long before you know what the implications will be. Thus, I think it should not be permitted for anyone to make that decision in advance of the specific dispute.

If there was class arbitration or arbitration provisions were void in the case of a class action then much of the criticism would go away.

The main problem today is companies can commit “small” torts under $1,000 and it’s not worth it for individuals to complain seperately.

> Its much less expensive and quicker for both parties.

Really? I'm hold a promissory note in a company that is in default. Unfortunately, I made a rookie mistake and agreed to an arbitration clause in the note. Suing the company in a real court would be quite inexpensive. Filing an arbitration claim is quite a few times as expensive. Even if I filed and won an arbitration case, I would then, drumroll please, need to sue in a real court in order to obtain an actual enforceable judgment.

So I'm rather unconvinced.

even a direct and immediate exchange can form a contract. for example things like (extended) warranty for the laptop that you're just buying with cash is a contract.

I agree that contracts have been weaponized, but maybe we can go with something like a public defender for contract law.

Is it kind of telling that the only case when free representation must be provided by the state when someone is indigent is criminal law or am I a victim of a long workday?

>maybe we can go with something like a public defender for contract law.

Public defenders for criminal law is something massively broken to the extent that we have innocent people going to prison every day. It is a system to be disgusted at, not attempt to replicate.

I will admit that public defenders are not as effective as private lawyers, but what would happen if we had nothing...people would still end up in jail most likely to a greater degree...perhaps we can iterate instead of innovate.

You have a lawyer review the contract and they are held responsible if they are approving known-unenforceable agreements.

The situation you are not handling is an "unknown"-unenforceable agreement though.

I get that you are trying to solve the knowingly-unenforceable contract situation, but there is a lot of collateral damage with your proposal.

Two parties can form a contract without a lawyer ever being involved, though.

What about the case where the contract is enforceable at the time of signing but the law changes after it's been signed?

What about it? At the time it was signed, it was enforceable. So the lawyer would be fine.

Should the entire contract then become void when one subclause becomes unenforceable?

If not, how is this different from the case where a previously unenforceable clause becomes enforceable?

No. There are standard, specific clauses in contracts to prevent this. If one clause is deemed void, the rest of the contract stays as is.

But that's the problem that we've got now. Being able to have such a blanket clause encourages putting in all kinds of crap to see what sticks.

This is ridiculous because the vast majority of regulations have never been tested in court.

If you punished lawyers for making good faith attempts at following the law, all you'll do is encourage lawyers to resort to ever nefarious means to avoid punishment.

IANAL but I think in the UK if a contract has too many restrictive and unenforceable clauses a judge will sometimes toss the whole contract.

Lawyers are thus incentivized to be careful about what they put in.

it's generally not a crime if there is no intent, trust the process.

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