Comment by 2pEXgD0fZ5cF | Hacker News Reader

Comment by 2pEXgD0fZ5cF | Hacker News Reader

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1. Most if not all ToS contain parts that contradict law and are thus not enforcable. ToS and contracts in general are not some magical trap cards you can "gotcha" everyone with with anything you want.

2. Pretending that ToS are written in a way that the average user without a law degree, or even technical competency in this example, can 100% understand them and interpret their future implications is just dishonest.

In that sense:

To any HN user, by replying to my comment you agree to the following terms:

- Starting February 20th, 2022, you are obligated to upvote every piece of written text or submission created by user "2pEXgD0fZ5cF" appearing, now or in the future, on the website https://news.ycombinator or any website that can be considered derivative of https://news.ycombinator.com. These terms of interaction are subject to change at any point in the future. [1]

[1]: I'm not a lawyer, and someone trained in law probably would've been able to create a version of this that is actually funny.

More and more TOS contain Mandatory Binding Arbitration. Once Mandatory Binding Arbitration is invoked, no other law matters. It supersedes other state and federal laws with respect to contracts. The contract will then be judged by arbiters who can be blacklisted by the company if they rule against them too often. State law is not permitted to prevent mandatory binding arbitration.

The fairness, reasonableness, or conscionableness of the rest of the contract is then not reviewable or adjudicate by a court of law. The arbiter will decide the fairness.

Due to clickwarp, you are not required to understand or perceive your loss of rights for them to be lost.

Corporations love them.

So, yes, they can be "gotcha"s

A couple of companies have been burned by that when a large number of customers all filed for arbitration at the same time. Because the company is responsible for the arbitration costs, it quickly became much more expensive than defending a class action lawsuit would have been. Arbitration is good if you're only expecting random one-off lawsuits here and there but if you're going to anger a large number of people, using it as an alternative to the legal system can quickly backfire.

I should've put my emphasis on the "anything" part, surely there will always be aspects that can't override established law. At least for now, who knows if in the future Zuckerberg sneaks some Droit du seigneur [1] clause into Facebooks ToS once Silicon Valley has successfully "disrupted" Bodily integrity.

[1]: https://en.wikipedia.org/wiki/Droit_du_seigneur

I'm not a lawyer either but it's an interesting subject. In England, for a simple contract to exist you need offer, acceptance, consideration. What do you have that you are offering me that I might accept and what do I get in exchange for abiding by your terms? What thing of value changes hands between us that could be the 'consideration'? Also I just realised you didn't state the jurisdiction you will enforce your contract, so I choose... Somalia. You say 'I'll see you in court' I say 'I'll see you in Mogadishu then' :-)

> What thing of value changes hands between us that could be the 'consideration'?

By HN standards, I am obviously a high-net-worth individual with a total karma count of 2619. Interacting with me, a Public figure in the context of our community, is a privilege given that I can't interact with an arbitrary amount of users in a given window of time. Since I am offering you this interaction free of monetary charge, the terms of interaction can be considered a reasonable way to protect my interests, productivity and daily life as a high-net-worth individual user of the site https://news.ycombinator.com.

Request for clarification: does "you" refer to yourself or the legal entity? If the legal entity, will a python upvoting bot in a jurisdiction where programs can be citizens satisfy contract terms?

The terms of interaction have been updated with the following addition:

These terms address any legal entity, any person equipped with the ability to communicate in written language. Further any entity that can be considered as capable of interaction with my comment in a manner that can be considered autonomous. In cases where autonomy can't be ascertained, the terms become applicable to a person by definition mentioned above that can be considered in control or responsible for the interacting entity.

You son of a gun. I'm in.

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