Clicking on “I Agree”: Sticking Your Head in the Lion’s Mouth?
It
happens to all of us once a week or even more often. We’re enticed to enter into some transaction
on the web and before the requested services/goods will be forthcoming we’re
given a lengthy document to read that contains the “take it or leave it” terms
of the supplier. Unless willing to abort
the transaction at this point, writing off the experience as a waste of time, we uneasily
click on the “I Agree” icon.
Do
you, blog reader, read the terms? Most
people don’t. They are mind-numbingly
detailed, written in dense legalese, meant to be too dull to contemplate, all
in all the sort of thing Mark Twain once called “chloroform in print.” Writing this sort of legal mumbo-jumbo in
such a fashion that it’s almost impossible to stay awake long enough to both
decipher and appreciate, is a much valued legal art. The lawyers who wrote it don’t want you to read it.
They want the task to overwhelm you so that you just give in, wave the
white flag, and click “I Agree.”
Some
contracts are too unfair to be enforced. Once you have accepted this premise, the
question becomes primarily one of drawing the line between a mere hard bargain
and a contract so filled with one-sided boilerplate that it amounts to what one
court called “carrying a good joke too far.” [Campbell
Soup v. Wentz, 172 F.2d 80, 83 (3d Cir. 1948)] Contracts containing harsh, unnegotiated terms
presented to the other side on a “take it or leave it” basis are called adhesion
contracts, because one party must adhere to the will of the other. They are
said to resemble a law more than a
contract.
If
the contract contains terms that are so unfair as to be deemed “unconscionable”
(beyond the boundaries of conscience), courts will typically toss out the
unconscionable terms and enforce the rest of the agreement. The idea that a contract may be unconscionable and therefore
unenforceable in whole or in part is an old concept, with us at least as early
as the mid-1700s (and, in fact, similar devices were available in Roman law).
Unconscionability
is a wild card doctrine. Ahead of time
it’s hard to predict what clauses will strike the courts as too unfair to be
enforced. Certain things do usually pass
muster: agreements to arbitrate all
disputes have been given a broad blessing by the United States Supreme Court,
which favors arbitration because there is a federal law saying so. In the same case [AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011)] the Court
blessed the practice of forbidding class
actions on behalf of many injured parties, which is a shameful thing to
forbid because otherwise miscreants go unpunished. But there are arguments on both sides of
those issues. Where the contract calls
for something truly outrageous (“Failing to make a payment means you will lose
both your American citizenship and first-born child”) the courts will certainly
strike down such clauses as unconscionable, and, if sufficiently upset, might even
strike the whole contract out of legal existence. In addition, many states have consumer
practices statutes that forbid certain clauses or regulate them (warranty
disclaimers, for example).
Professor
Karl Llewellyn of the Columbia Law School was one of the great legal minds of
his day and the author of many famous discussions of commercial problems. When
he tackled the problem of unconscionability, he came up with his celebrated “true
answer” to the issue of enforcing harsh clauses in contracts:
The
answer, I suggest, is this: Instead of thinking about “assent” to boilerplate
clauses, we can recognize that so far as concerns the specific, there is no
assent at all. What has in fact been assented to, specifically, are the few
dickered terms, and the broad type of the transaction, and but one thing more.
That one thing more is a blanket assent (not a specific assent) to any not
unreasonable or indecent terms the seller may have on his form, which do not
alter or eviscerate the reasonable meaning of the dickered terms. The fine
print which has not been read has no business to cut under the reasonable
meaning of those dickered terms which constitute the dominant and only real
expression of agreement.
Karl Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 370 (1960). He added that someone signing an adhesion
contract is doing something similar to putting one’s head into a lion’s mouth
and praying it’s a friendly lion.
Court
decisions on “I Agree” internet contracts don’t agree. Compare Riensche v. Cingular Wireless, LLC, 2006
WL 3827477 (W.D. Wash. 2006) (no unconscionability if consumer clicked on “I
Agree” icon), with Bragg v. Linden Research, Inc., 487
F. Supp. 2d 593 (E.D. Pa. 2007) (finding unconscionability in spite of
consumer’s clicking “I Agree” icon). The
differences appear to be between judges who are strict constructionalists and who
seem to think it’s still the 19th century when contracts were truly
negotiated and they respect absolutely the old legal maxim that “those who ignore
the duty to read are bound by what they sign,” contrasted with judges who
recognize that in the 21st century contracting requires adherence to
dictated terms over which one has no choice at all. The latter judges are willing to police
whether the lion gets to swallow users whole or not.
So what do I do? Like most people on
the planet, I grudgingly yield to the inevitable and don’t even attempt to read
the morass of legal confusion that masquerades as a negotiated contract. As I put my head into the lion’s mouth I’m
willing to endure some saliva dripping on my clothes and just hope that there
will be no teeth chewing on important parts of my body.
------------------------
Related
Posts:
“I Threaten To Sure Apple Over
an iPad Cover,” April 8, 2011;
http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html
http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html
“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011; http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html
“What Non-Lawyers Should Know About Warranties,” October 11, 2011;
http://douglaswhaley.blogspot.com/2011/10/what-non-lawyers-should-know-about.html
"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html
“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;
http://douglaswhaley.blogspot.com/2012/08/howto-win-argument-and-change-someones.html
“Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013; http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html
“Legal Terms You Should Know,” September 13, 2013;
http://douglaswhaley.blogspot.com/2013/09/legal-terms-you-should-know.html
“How To Respond to a Legal Threat.” March 29, 201; http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html
“My Battle with
Sony To Get a Refund on a DVD Player”;
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html
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