Hacker News Reader

Comment by noja | Hacker News Reader

How is it possible to opt-out of a legal process?

How is it possible for this to happen automatically without agreeing to it?!

The Federal Arbitration Act explicitly permits. There are a variety of situations where arbitration entirely makes sense: companies may not want to deal with court resolution of contract disputes for efficiency reasons (the courts are slow and expensive) or may want to have a defined venue with rules of their choice (I've been told that, for international deals, foreign firms are _very_ wary of US discovery rules, and agreeing to arbitration instead can let you avoid them and smooth signing the deal, which the parties probably care more about than potential disputes in the future). It's a very useful and reasonable option for contracts _between peers_

Unfortunately, the law treats negotiations between actual peers and large companies "negotiating" with individual customers the same way--it'd be hard to delineate distinct classes of actors that can and cannot enter into arbitration agreements (or contracts in general).

Requiring an explicit opt-in versus "by continuing to use this service with saying otherwise, you consent to this change" for certain classes of contractual changes is probably doable (IANAL this could possibly raise some issue I'm not thinking of), but in practice there's no political will to make that change. Automatic consent is legal currently and will likely remain legal in the future.

> Unfortunately, the law treats negotiations between actual peers and large companies "negotiating" with individual customers the same way--it'd be hard to delineate distinct classes of actors that can and cannot enter into arbitration agreements (or contracts in general).

And yet we are able to do so in the EU, with just one sentence: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

> (b) ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

and that directive prohibits binding arbitration in the annex:

> (q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

also relevant form the annex:

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract [1];

And the annex list is not exclusive. In general any term that is not in good faith is considered non binding for consumer contracts if there was not individually negotiated.

[1] There are nuances, for example such a term might be valid as long as the customer has the option of terminating the contract.

> How is it possible for this to happen automatically without agreeing to it?!

When you initially agreed to the TOS, there was a clause that said Venmo/PayPal can modify the terms whenever they want:

"We may revise this user agreement and any of the policies listed above from time to time. The revised version will be effective at the time we post it, unless otherwise noted. If our changes reduce your rights or increase your responsibilities we will provide notice to you of at least 21 days. We reserve the right to amend this agreement at any time without notice, subject to applicable law. By continuing to use our services after any changes to this user agreement become effective, you agree to abide and be bound by those changes. If you do not agree with any changes to this user agreement, you may close your account."

https://venmo.com/legal/us-user-agreement/

Every TOS you've ever agreed to has a clause like this. These agreements are extremely one-sided.

> When you initially agreed to the TOS, there was a clause that said Venmo/PayPal can modify the terms whenever they want

That is the thing which really should be illegal. It doesn't even make sense. You agree to terms that we can be modified any time they want? What are you even agreeing to with a contract like that?

It's simple. It's like Sharia law. People agree to not have the law apply to situations before they get into them as a precondition for working, having a place to sleep, buying things, having medical care, or entering a building, etc., and the law looks the other way while a judge for hire decides what's right.

> How is it possible to opt-out of a legal process?

via contract

> How is it possible for this to happen automatically without agreeing to it?!

by accepting the Terms of Service

Has this been tested in court? It would seem the user was not given time for due consideration. Would a court agree or disagree that there was a meeting of minds?

Unobvious as long as someone doesn’t try it in court. I seem to remember that Zappos lost a case about unilateral modification once but I don’t know the exact content.

I believe the poster was implying that contracts should not be superior to law, should not be able to remove a person's legal protections. Enforcing contracts no matter what (or in other words, placing no limits on which contracts it will enforce) should not be a legal system's goal.

They are never superior to law. If there is a law that says "Thou shalt not eat oranges." then no contract can stipulate eating oranges by either party, and there is no legal redress to it other than changing the law, contract law never supersedes "the law of the land"

That's a very reductive view. Yes, strictly speaking, the law is always superior. But if that law allows things such as signing away your rights, then that superiority is meaningless.

Reply on news.ycombinator.com