Comment by belorn | Hacker News Reader

Comment by belorn | Hacker News Reader

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While I applaud the effort, in the end, it is mostly just a game played by lawyers who write ToS.

Terms of Service tries to be legally document, enforceable across borders. Its not related to copyright, so there aren't any treaties to unify each countries laws. Also, because it is not copyright, ToS get put into the all covering service/contract law. Where I live, Sweden, those laws was written in 1900, and is in my view 100% incompatible with ToS or EULA's.

To take one example, they require that the person providing a contract makes sure that the other party is fully informed of the contract, and that the other party is benefited from signing the contract in relation to the terms. Reading the history around it, they basically makes in unlawful to knowingly "trick" people to sign contracts that are one-sided.[1]

On the "trick people to sign" part, I am also slightly considering the fact that companies often know how long time someone spends reading an ToS/EULA. They know when, and how many people can't have human possible read the agreement before pressing OK. When MMORPG clients update a new agreement, people are logging in seconds after its possible. If you knowingly are going into a contract with someone who hasn't read and understood the terms, its hard to claim that the contract was made in good-faith (jfr BrB 9 kap 1 §).

All in all, ToS and EULA's just seems to me as an broken concept.

https://lagen.nu/1915:218 30§ and 36§

I believe the purpose of service is to raise awareness of your legal rights and what rights you sacrifice when using the service.

In Common Law jurisdictions, "I read and agree with ToS" is prima facie (on its surface) binding on the user. You cannot get away from a contract by simply not reading it - many people would repudiate their contracts if this was the case. I do not believe there is such a law in Common Law about "tricking people" to sign contracts. Whether a term is lawful depends on the circumstances of the case - this is why law is complex and must be cases must be litigated in order to determine lawfulness.

Many contracts we sign are one-sided. This is due to the respected bargaining power of the parties. The courts and the legislature have to balance between interfering with the freedom of contract and the notion of fairness. Some terms must be one-sided by nature- eg: banks can unilaterally change the interest rate on your property.

Since QoS/ToS is a primarly unenforceable contract meant for a global market, a service that points out the different kinds of unenforceable contracts is a praiseworthy service, but with somewhat limited use.

>You cannot get away from a contract by simply not reading it

Well, in Swedish law, quite a lot weight is given to the circumstances around the contract, and if it was made in good faith. Take people who sends out false bills, relying on people who do not read the letter fully and see that it actually was not a bill but an "offer of service". That is still fraud, and people who pay those bills without reading it can still get away from the "contract". This might be different in UK, Germany, any of the state laws in US and so on. Maybe some of the 27,000 pages of federal law has something about it, but I am not a US lawyer. The laws are so old that what exactly can nullify a contract in one country will likely be different from an other.

> The courts and the legislature have to balance between interfering with the freedom of contract and the notion of fairness.

This is an area where laws are likely to be very different between countries. It touches on consumer protection, as well as contract law. The Swedish law is very unspecific here, and just generically defines that unjust terms are grounds enough to nullify a contract either in parts or in full. The consumer protection laws goes a bit further, and declares that the party offering a service must make sure that the consumer is fully informed about the terms, and must also make sure that the consumer is benefited from agreeing to the contracts and all its terms. If not, then the consumer has a right to nullify the contract and get back any money already paid. For the bank example, this mean that the bank must make sure the consumer is aware of the costs involved before signing, and the the rates are within reasonable levels. If they tried to get someone to agree to a 1000% interest loan, the contract would be almost guaranteed to be nullified in court if challenged.

Yeah, I am talking about Common Law in general.

Interestingly, consumer protection aspect you talk about is very similar. Stronger protection is given to consumers through legislation - eg: Sales of Goods Act in UK. The word "reasonable" is ingrained into common law and a 1000% interest loan would certainly not be reasonable.

>You cannot get away from a contract by simply not reading it All circumstances around the contract would be considered in common law. I believe the courts would rather void the term on the basis of unfairness rather than putting weight on the fact that the person did not read it.

Contract is binding even if you have not read the contract is a very important cornerstone of contract law. Almost everyone that signs the contract does not read the contract - even contract that exceeds billions of dollars. They turn to their lawyers to read and negotiate the terms. Complex and specific terms are required to specify the rights and obligation of each side. If we are forced to read the contract before we sign them, our society would not be able to operate and many disputes would arise over overly broad terms that can be interpreted in many different ways.

> a 1000% interest loan would certainly not be reasonable.

Some payday loans calculated APR is in the high hundreds of percentages (like 600%+). Lenders are often required by law to report the APR even though the terms of the loan may only be for a few weeks worth of time, causing the inflated APR.

Payday loans, however, are generally held to be enforceable contracts.

"You cannot get away from a contract by simply not reading it - many people would repudiate their contracts if this was the case."

This is one reason, I think, why contract signings are witnessed. In a dispute the witness can testify that you did in fact read, appear to understand, and willingly sign. And this is why online TOS are difficult to enforce: no way to prove that you even saw the contract or intended to click the "agree" button.

"banks can unilaterally change the interest rate on your property"

Say what? If I sign a 30 year note for 3% interest it's 3% for 30 years, and the bank is stuck with that.

>Say what? If I sign a 30 year note for 3% interest it's 3% for 30 years, and the bank is stuck with that.

Yes. if a bank would sign a contract with you then it is valid. I highly doubt that would be the case, the bank needs to borrows the money from someone else. They just merely make the difference in the interest rates. Taking a fixed interest rate would mean that they risk losing money if the money the borrow from somewhere else exceeds 3% in the next 30 years.

>why contract signings are witnessed. In a dispute the witness can testify that you did in fact read, appear to understand, and willingly sign. And this is why online TOS are difficult to enforce

This is not a problem at all. In Common Law jurisdictions (US, UK), contracts do NOT have to be witnessed (with some exceptions like Wills). Contracts that is signed without any witness are perfectly valid. This would apply to your ToS, if it states the laws of US, UK would apply to this contract. All contracts would state the jurisdiction that applies and all (respectable) courts would honor that term.

"if a bank would sign a contract with you then it is valid."

I still don't understand - I think you might be confused about how mortgages work. Every loan is a contract. There is no such thing as the bank just giving you some money and then deciding on the interest rate later. Adjustable rate loans adjust according to a formula in the contract. Fixed rate loans are fixed, and the bank enters into the contract because they estimate that they will make a profit. If they don't, they are still stuck with it. It's a contract, they can't change it.

"contracts do NOT have to be witnessed"

I know; I never said they did. I just said that witnessing can help establish the validity of a contract if a dispute arises, and that TOS click-throughs lack this. I'm pretty sure that any serious contract, involving a lot of money, is witnessed. All of the house loans I've ever signed for have been witnessed, and I had to prove my identity as well.

In the US over 90% of mortgages are fixed rate (http://www.newyorkfed.org/research/current_issues/ci16-8.pdf)

Yes, if it is a contract, then it would be binding.

Laws may put more requirements than pressing a button. The normal standard in Sweden is to make a written paper and then let both sides sign that. Scrolling past a lot of text and then pressing OK does not pass that hurdle.

It is possible to do electronical contracts, but that would involve some sort of digital signatures.

>Laws may put more requirements than pressing a button. The normal standard in Sweden is to make a written paper and then let both sides sign that. Scrolling past a lot of text and then pressing OK does not pass that hurdle.

That would be an incorrect understanding of the law or at least common law. When you go out to purchase a drink from Starbucks, you have formed a contract with them. Signing is not essential to forming a contract.

"Laws may put more requirements than pressing a button." Are you sure?

There are many kinds of contracts, not all of them have the same form requirements.

I am sure you haven't read most of the contracts you are bound to, yet, you are bound to them.

We pretty much agree that it’s a broken concept. But that doesn’t keep companies from data retention, or using your content with their copyright, or or or …

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