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Comment by gambiting | Hacker News Reader

In general, contracts can say literally whatever they want, and it doesn't mean they will stand up in court. If the court agrees that Apple selling $25k worth of stuff and denying access to it isn't "fair", then it isn't fair, end of story, regardless of what the contract says. The court might of course disagree, but you can't be certain until the case happens.

I do however believe that Apple will just settle this out of court, specifically to avoid such a ruling.

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I think the courts are going to look for legality instead of fairness.

Both - because there are laws against unfair contracts, especially when the unfair portion is only explained to the less advantaged party (the customer) in hidden tiny text.

A reasonably degree of fairness is a requirement to be legal, otherwise the contract is deemed "unconscionable" and void.

Plus, this would a contract of adhesion—and courts hate contracts of adhesion and try to interpret them in favor of the consumer as far as possible.

I mean, yes, ultimately, but a contract that's aiming to be deceptive or one that imposes extremely punitive measures isn't going to be legal. You could write a contract that says that you can at any point terminate the contract and the other side has to buy you a latest Lamborghini. Like, there's nothing illegal about that in itself, but if the paragraph about the Lamborghini is just mentioned once on page 178 of the contract and not advertised anywhere, almost certainly any court will find it null and void, because people who have their contracts terminated usually don't have to buy people cars. Not illegal but unfair, which makes it deceptive which makes it illegal.

Your example would likely be unenforceable because contract terms must provide _consideration_ for both parties, or an element of fairness in the real assets being exchanged. Requiring one party to purchase a Lamborghini at the sole discretion of the other provides no consideration for the former.

An example of consideration in a penalty clause like this is AT&T's failed acquisition of T-Mobile US, where the contract forced AT&T to pay $3 billion and give up wireless spectrum when they abandoned the deal. In this case, the consideration was T-Mobile's time and money spent entering the deal in the first place vs. the penalty to AT&T.

It's also worth noting that "unfair" and "deceptive" are not synonymous in their legal definitions. An unfair practice involves terms that are not beneficial to one party and are unreasonable to avoid, while a deceptive practice is one that misleads the party into accepting unreasonable terms.

I'm not sure what you mean by "end of story," apple can tie this up in appeals for years

Presumably the person and more importantly the lawyer who have decided that it is worth suing Apple over just 25k worth of damages have the wherewithal to take this all the way to the supreme court. Incentives in class action suits work weirdly.

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