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Sorry, but those huge walls of terms and conditions you never read are legally binding

Anonymous Coward

This, chums, is why forced arbitration should be illegal.

And EULAs need to be dumbed down to a 5th grade reading level.

Of course none of this will come to pass under The Donald's administration.

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yeah OK, but it wouldn't have happened under Hillary's administration, or a 3rd Obama term if that had been possible. Nobody cares about you.

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"but it wouldn't have happened under Hillary's administration, or a 3rd Obama term if that had been possible. Nobody cares about you."

Which is, sadly, exactly right. A politician's two jobs are to get elected or re-elected. Our needs are a distant third. Hillary Clinton spent $1,200,000,000 in the presidential campaign. Where did that money come from? I can promise you people they didn't give the money to her because they liked her. Quite frankly, Donald Trump and Hillary Clinton are two of the most unlikable people. The people who gave her all that money want political favors. Nobody cares about you because you don't have enough money to make the politicians notice.

I just ride it through. Every administration does some things I like and many more things I hate. If they had the answer to our problems they wouldn't be politicians.

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The judge seems to have gone through his thought process wrongly.

1) How long is this contract, if printed out? 50 pages at 12pt font.

2) How long will this take to read? Several hours.

3) Is it possible for the average layperson to encompass and understand? No, not without a solicitor, perhaps not even then.

4) Is it reasonable to expect the average layperson to spend several boring hours of their time and spend the money to retain and employ a solicitor every time a company's terms and conditions change? No.

What we need is a site, or clearinghouse or something where we can subscribe, maybe pay 5 or 10 or whatever a month, to go and get a plain language, single page bulleted summary of these things, because no company seems to want to spend the time to do that. And there are so many of them out there that we'd spend most of our time driving ourselves to suicide reading and trying to understand them.

Or, you know, one could make the common sense ruling that "If it isn't something that a reasonable layperson can be expected to read and understand, it is not legally enforceable." Have your longass contract if you want, but include the Cliff Notes: Legalese version.

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Anonymous Coward

> 4) Is it reasonable to expect the average layperson to spend several boring hours of their time and spend the money to retain and employ a solicitor every time a company's terms and conditions change? No.

5) Even after all that, there isn't really any choice the consumer has, apart from to decide not to do business with the company.

That is: you're stuck somewhere and you want a ride home. You can either take the Uber ride, and agree to all their conditions, or stay stranded.

Even if there are alternative options: anything that Uber can get away with, they will do the same.

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Or simply use a real taxi?

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AC - It ain't happening mostly because those hiding behind the sleaze and their shyster cronies will never want to be 'outed' as the sewer rats (apologies to sewer rats) they really are.

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Anonymous Coward

forced arbitration

This, chums, is why forced arbitration should be illegal.

But would your opinion be the same if the test case (and especially the defendant) changed? For example, would you be in favour of mandatory arbitration as the last-ditch measure for the public-sector (or more broadly, essential-service privider) employment contract negotiations, together with a ban on using both strikes and lockouts as a negotiating tactic?

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I don't look forward to the EULA for the summarising site. Would have to be some pretty strong language to avoid them becoming liable for consequences occurring between the precise language in the original document and the dumbed down version provided. Either that or it'd be plainly-written and simple enough for even a budget lawyer to take down in court, for the intermediary to be liable for many, many huge sums of cash, and then go out of business.

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Orv
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Re: forced arbitration

I might be convinced if the arbitrator were in some way impartial. But in these cases the company pays the arbitrator, which is under strong pressure to rule in favor of the company, lest they take their business elsewhere.

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"If it isn't something that a reasonable layperson can be expected to read and understand, it is not legally enforceable."

A contract requires a meeting of minds. If the text appears readable to a lay person but actually contains legal gotchas that a lay person wouldn't spot, those gotchas are probably unenforceable. If it just isn't readable then that lay person probably shouldn't agree to it. The contract discussed in this article is readable, but so long that the average Joe won't read it. Whether that constitutes a deliberate attempt at obfuscation (making it an "unenforceable gotcha") is a matter for debate but if it isn't then we should expect to end up in a world where every contract is ridiculously long. Oh wait...

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Happy

Timeouts

If you can't read the EULA before the web site or signup attempt times out, then you can't possibly be bound by it.

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Happy

The trouble is..

..uber are just one in a long line. For decades, all sides of the pond - those T&C's have been gibberish to normal folk.

It's barely even possible any more, to avoid the T&C's, even if you pay cash. Mind you, this new autumn of millennials can't handle cash. On the up-side I've had two cheap Mc'D meals this week. Seems they don't understand £2 coins.

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Re: The trouble is..

And I work with a fine bevy of legal beagles. From corporate to criminal to whatever. And none of them can really interpret the legalese in an absolute way: If I do X, can I do Y. The fine print (2pt) is matched by the intentional obfuscatory wording.

As some two-bit playwright penned: "The first thing we do, let's kill all the lawyers"

There. Solved a lot of problems for us all. Most of congress is made up of JDs/LLDs. Oh, well there are too many MBAs, pest exterminators, etc. Let's just get back to people's justice.

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Re: The trouble is..

Around about the time I was born (60's) my father stopped being a "lawyer". All I know (from my mother) is he came back one day from court, fuming. There was was some miscarriage of justice and he could do nothing about it. He was so pissed off, he left his job & never did criminal work again.

"son", "never trust a lawyer". I can add to that..

Never put down to malice that which can be put down to stupidity.

Never put off until tomorrow that which can be but off until next week.

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Re: The trouble is..

@swampdog:"There was was some miscarriage of justice and he could do nothing about it. He was so pissed off, he left his job & never did criminal work again."

Did they not have appeal courts back then?

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Meh

Re: The trouble is..

Did they not have appeal courts back then?

I am sure they did, but they probably also had clients who weren't multi-millionaires too.

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WTF?

Re: The trouble is..

@Smooth Newt:"I am sure they did, but they probably also had clients who weren't multi-millionaires too."

Why would you need to be a multi-millionaire?

A defendant in a criminal case is entitled to legal aid (or a public defender if you prefer to call it that) if he can't afford to pay for representation.

All I can tell from the original story is that a lawyer threw in the towel on his client?

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Meh

Re: The trouble is..

Why would you need to be a multi-millionaire?

A defendant in a criminal case is entitled to legal aid (or a public defender if you prefer to call it that) if he can't afford to pay for representation.

Only a small proportion of the adult population are entitled to meaningful legal aid. In the UK, you are entitled to legal aid covering your full costs in criminal cases if your income is no more than £12,475 and you have assets (including your car, any equity in your home etc) of no more than £3,000. It tapers down quickly and e.g. you won't get anything at all if you have more than £8,000 in assets.

If it is a complex case, which it would almost certainly be for the Appeal Court, you will need experienced counsel at around £200 per hour for a solicitor and double that for a barrister, and you will probably have several of each. So you can easily be looking at a bill of £50k if you lose, plus the Crown Prosecution Service's costs, probably a similar amount. So, unless you are either very poor or wealthy enough to be able to bet £100k on the outcome, then the Appeal Court is probably out of reach to you.

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I wonder if you post them a 40 page letter saying actually you don't agree and/or they therefore agree to a load of stuff too, and presumably they don't read it, it's binding too then?

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Thumb Up

Remember when T&Cs used to appear in a piddling little text box in an HTML Form? All those hundreds of lines in a 4-line window.

On occasion I actually deleted all of that, and substituted my own words. Something like "Illegible T&Cs deleted for clarity". Thus I was demonstrably not agreeing to something that I couldn't hope to read without jumping through hoops.

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I was giving a contract by an advertisers. In it was a binding arbitration clause. They had several ways of me signing the contract. One way was to print the first page and email the scan to them. So I printed the entire thing, crossed out the binding arbitration paragraph, and emailed the whole contract back to them. The advertiser sent me a thank you note a few days later. This shows that the advertiser did not read their own contract. Probably because almost everyone is too lazy to bother reading the contract so they assumed I was too.

One of the reasons why I have not installed Windows 10 is because I read the terms and conditions and I do not agree with all of them.

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I was working on a contract when the agency wanted to change the contract details. I read the new one carefully and challenged several clauses. The agency repeatedly failed to amend it as I requested and eventually they sent me a copy in Word for me to edit instead. It included the scanned signature for their senior manager so I completely re-wrote it making all the terms in my favour, printed it and signed it then sent it through to them. They made no comment so since there was only one copy with both parties had 'signed' then clearly that was the contract in force :)

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Versioning

To my mind there is no method of tallying an on-line version of T's & C's with a user's tick box response. Tallying in our high-tech world should involve an MD5 hash or equivalent to indicate that the user agrees to this specific version of the T's & C's, because tomorrow the site owner can change the wording and claim that this is what you agreed to.

Surely then they would have to go through the hoops of proving, from the Raw Access Logs of the webserver when the T's & C's were uploaded, and when I visited, but if the website owner has physical access to the site, they can go behind the scenes to change the file.

Returning to the MD5 hash principle of proof: even that is not entirely watertight as collisions are possible, but statistically implausible. The other way is for the website owner to send you a copy of what you've signed by email, or get you to sign a secure document.

Javascript is another way to serve up something different to what you think you are agreeing to.

Where I suspect there could be this kind of problem I simply save the webpage of the legakese, so I have a contemporaneous record of what I have agreed to.

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Def
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It included the scanned signature for their senior manager so I completely re-wrote it making all the terms in my favour, printed it and signed it then sent it through to them. They made no comment so since there was only one copy with both parties had 'signed' then clearly that was the contract in force :)

Or they simply printed out the page with your signature and stuck it with the rest of the original contract.

You did remember to initial each page, right?

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If they're willing to do that, they're also probably willing to hire a forger to initial fake pages for them as well, probably even create a forgery of an entirely new contract and then sociopathically lie that your copy is the fake and that you bribed a civil clerk to falsely certify the copy (and used insiders in City Hall to plant the evidence).

IOW, if someone REALLY wants you, if they have more connections than you do, consider yourself screwed. Much as civilization likes to say it isn't so, in the end might makes right.

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WTF?

'...they sent me a copy in Word...'

Yay! Wiki-agreements: the contracts any party can edit!

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Anonymous Coward

Re: '...they sent me a copy in Word...'

Yay! Wiki-agreements: the contracts any party can edit!

Isn't that the whole point of a contract, when honestly negotiated and knowingly entered into?

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Re: '...they sent me a copy in Word...'

Except for the part of it already being signed...

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Re: Versioning

Ah, but there in section 5, sub-section 9, paragraph 6, it says that they reserve the right to change the terms without notice, and you agree to be bound by whatever those terms will be.

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It didn;t used to be this way

In the past, courts often ruled that you could not give up your fundamental rights no matter what you signed.

Then over the course of the last few decades, somehow business became above the law and individual rights.

America is an outright fascist nation.

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Re: It didn;t used to be this way

@ecofeco:"America is an outright fascist nation."

I agree with you 110%.

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Re: It didn;t used to be this way

Are you suggesting that in America you can waive your right not to be a slave if that was in the terms and conditions, and that the courts would uphold it and the federal government enforce it?

If not - then you cannot give up your fundamental rights by signing them away in America and what you say is total tosh.

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Headmaster

Re: It didn;t used to be this way

"Are you suggesting that in America you can waive your right not to be a slave if that was in the terms and conditions, and that the courts would uphold it and the federal government enforce it?"

That is exactly what the court has sanctioned. The T&Cs remove the right to resort to the established legal system, and the judge has ruled this is acceptable.

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If it's obvious that agreeing to the terms and conditions are legally binding, then surely the obvious response is the nuclear one: we should all stop and read every word and send emails querying legalise we don't understand and ask if things we don't like could be changed please, before clicking "I agree" - however many days it takes. Same in physical stores incidentally, but with the addition of thermos flasks, sandwiches, A4 note pads and folding stools.

I'm up for it. Anybody else?

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Will not work, because the firms have figured that if you don't agree, you can do without the service. They're not interested in spending the time/effort to appease your issues, just sign it and get on, or go elsewhere.

What this needs is legislation, but I can't for the life of me work out quite what that would look like.

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Agree - won't work. We all want the latest "shiny" NOW!

F them legaleses!

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This post has been deleted by its author

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"What this needs is legislation, but I can't for the life of me work out quite what that would look like."

Something like this?

http://www.legislation.gov.uk/uksi/1999/2083/contents/made

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Up for it? Already did it, last time I renewed my phone contract. Went to the shop, insisted they printed the T&C in English, not Chinese, read it standing there in the shop, amended the bits I wanted to in pen and signed. Didn't even need the thermos and sandwiches, only took half an hour.

It worked because the assistant wasn't briefed on how to handle it, and thought it was easier to complete the transaction and hand the paper on to administration.

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When I upgraded iOS, I completely ignored the ridiculously long list of TS&Cs. The machine had already updated itself so there was no way to back out, so the only option was forwards, meaning you couldn't not accept them.

I'm sure in a country with a shitty legal system like America, it may pass as legitimate behaviour. I hope that the country in which I'm living has more sensible judges...

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>then surely the obvious response is the nuclear one: we should all stop and read every word and send emails querying legalise we don't understand and ask if things we don't like could be changed please

Probably the best thing is to respond in kind: send them your T&C's by snail mail giving them a 14 day cooling off period, after which your T&C's take precedence over their T&C's...

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"firms have figured that if you don't agree, you can do without the service"

The firms can't do without us anymore than we can do without them. It's a question of numbers and the OP was suggesting that all customers should take this approach. That's very unlikely, but it would be immediately effective since otherwise the company's revenue simply dries up, forever.

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Re: http://www.legislation.gov.uk/uksi/1999/2083/contents/made

Section 5, in particular:

"(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

"(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

Of course, IANAL so I can't actually say whether those clauses would help a UK customer. (Section 9, by the way, seems to make it perfectly clear that UK law would apply to such a case.)

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Re: http://www.legislation.gov.uk/uksi/1999/2083/contents/made

I thought about using this against VALVe, but since their Lawyers convinced a Judge Computer Games are not Software, I don't fancy my chances.

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"The firms can't do without us anymore than we can do without them. It's a question of numbers and the OP was suggesting that all customers should take this approach. That's very unlikely, but it would be immediately effective since otherwise the company's revenue simply dries up, forever."

Point is, you'll never get that far. As P. T. Barnum once said, "There's a sucker born every minute," and there are seven billion plus of us. As long as they can convince enough suckers to sign on, the rest of us can go chase unicorns as they can then just reply, "Next!" The kind of unity you'd need to convince most of the population to rally behind you would need to be supported by some life-and-limb whiter-than-white issue, and this simply doesn't tick all the boxes.

The TL;DR version: How do you win when you're surrounded by idiots?

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Acceptance of T's & C's

Some years ago I bought hosting and domain from a place [that shall remain nameless] for one of my customers. The customer paid for it by credit card, the site was designed and uploaded.

Roll on a year. Got a reminder from hosting company saying to pay to renew, or else it will be cancelled. I contacted customer "that website, shall I renew it?" Answer came back in the affirmative, so I renwed it using my card.

Roll on another year. Got a reminder from hosting company saying to pay to renew, or else it will be cancelled. I contacted customer "that website, shall I renew it?" This time the answer was no, so I didn't think any more of it.

When my credit card statement arrived I noticed that I'd been charged for it. I contacted the hosting company and my bank to revoke the payment.

Hosting company said that as I had a rolling account with them I had to explicitly cancel the hosting, even though their email said it would be cancelled. They told me rather snottily to read their T's & C's and I was ready to put that one down to experience.

Then a rather curious thing happened: the bank chased me "why haven't you filled out the revocation form we sent you?" I told them that I didn't really have a leg to stand on, but they said "well, we'll keep it open for you, just in case you wish to explore the circumstances thoroughly." Hmm, unusual for the bank to be this amenable, I thought.

So I read their T's & C's and in them was the nugget (paraphrased) saying that in subsequent years hosting fees will be deducted from the credit Card used initially. Initially??!! I immediately filled out the bank's form and sent it off, together with a copy of the T's & C's with that word underlined, pointing out that "initially" the hosting was bought using a different credit card. I got refunded immediately.

Ok it was a technicality, but the deceptive wording on their renewal email deserved it. I really must check to see if they've altered that clause.

The moral is not to be cowed by "the big boys legalese".

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Anonymous Coward

To be fair to Apple

{I know that this is like a red-rag to a bull here}

but they do publish their Terms and Conditions.

https://www.apple.com/uk/legal/sla/

and you can revert to the previous version of iOS as long as Apple are signing it.

Here is one article on the subject

https://www.howtogeek.com/230144/how-to-downgrade-to-an-older-version-of-ios-on-an-iphone-or-ipad/

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T&C Everywhere!

" if things we don't like could be changed please, before clicking "I agree" "

Imagine a country where each customer that wants to walk into a store need to sign a T&C and the customers would also give a T&C to the salesman and manager to sign before walking in.

By that time, it is only a question of time before someone owns everyone's first born (from T&C: your first born is mine).

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Perhaps things would be better if instead of "Terms and Conditions" they were labeled as "Legally Binding Contract", which they apparently are.

Also, software that displays the EULA in a purposefully small window is evil.

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