Satan Forced To Install Basements, Mountain Dew Fountains, Cheeto Dispensers

Nobody reads all of the contracts they "sign," whether "signing" means a wet signature of a checked box online. That's why a gaming company was able to get online customers to give up their immortal souls in the course of approving a web site's terms and conditions:

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from or one of its duly authorised minions."

GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

This is only slightly less aggressive than the RIAA's proposed terms of use.

Contracts in general, and contracts of adhesion in particular, present a tension between reality and theory. In reality, folks click "yes", accept the ticket with small print, sign the rental agreement, and ink the home loan without reading them. But in theory, we hold people responsible for the terms of agreements they have signed. This leads to occasional vigorous arguments among friends about whether or not it's reasonable to hold individuals to the terms of contracts they didn't read, and whether it's their own damn fault if the contracts include something that they later discover they don't like.

Frankly, I come down on the side of saying "read the damn contract, or accept the consequences if you don't." I say that, in part, because I think contracts are the best way of avoiding our irreparably broken legal system, and the best way of extending maximum responsibility and freedom to individuals. Weak contract protection contributes to a system in which anyone can sue for anything and inflict heavy legal expenses on adversaries without just cause. Are there exceptions? Sure. The doctrine of mistake of fact would prevent you from selling your soul in a TOS or your firstborn in a parking lot ticket. But in general, I think individuals need to take responsibility for their interactions — and that includes accepting that sometimes you're going to have to walk away from a consumer situation if you don't have time to read what you are getting into.

Last 5 posts by Ken White


  1. says

    "The doctrine of mistake of fact would prevent you from selling your soul in a TOS or your firstborn in a parking lot ticket."

    Ken, as you may know, I am not a lawyer, do not play one on TV, and have never taken a contracts class. But I do wonder if there's some other things that would make this contractually difficult:
    1) Can one establish, to the satisfaction of a court, that there is some object called a soul? If the soul does not actually exist, wouldn't a contract transferring a non-existent object be invalid?
    2) Assuming that the soul can be proven to exist, can one prove that transferring the soul is possible? I believe it is established law that one can't contract to do something that's impossible.
    3) Assuming that the soul does exist, and can be transferred, would sale of the soul be barred by the same laws that ban sales of body parts? One of the few things I think I have a clear grasp on, in terms of contract law, is that a contract to perform an illegal act is not enforceable.

  2. says

    That was a bit facetious by me, Dwight. Obviously there are other problems with the "sell your soul" term. But the doctrine of mistake of fact is generally what you would use to attack a contract that had, buried within it, a completely unrelated shocking term.

  3. Greg Conen says

    The adhering to contracts sounds like a good idea, and I even read the contracts associated with major transactions (apartment leases, employment contracts, car purchases, presumably all the paperwork once I buy a house).

    The problem comes with click through contracts that have 20 pages of legalese for a $20 purchase. Requiring customers to read and understand such a contract for a minor purchase is a significant burden.

  4. says

    I agree with Greg above. It would be far better to have unified contracts/licences, at least for "small purposes". If you need to read 50 pages stuffed with long, pompous sentences mostly built with synonyms just to subscribe to, then no…

    IMHO Creative Commons (which is not a contract, granted, but a license) is an example of a good way to go. It's unified, yet allows for variation. It's clearly, simply explained and pictured. And if you need to read the whole legalese, it's there to.

    Now if each EULA (End User License Agreement) included in many computer programs actually were more like Creative Commons and less like… what they are, perhaps people would read them. I mean, come on : it's ok to have to read 50 pages of legalese for a house or an insurance, but for any damn computer program ? You'd spend half your life on that…

    If it is the client's responsability to read the thing, shouldn't it be the vendor's responsability to actually produce something that can actually be read without resorting to morphine to ease the pain and boredom ?

  5. Greg Conen says

    As a follow-up, it's worth noting that many click-through contracts are actually harder to understand and denser than the things associated with, e.g. buying a car or renting an apartment.

    It strikes me as somewhat absurd.

  6. says

    As another follow-up, what's the deal with such lengthy contracts ? As a student of the Middle Ages, I have seen quite a number of medieval contracts (land grants, military service, royal privileges, etc.). Amazingly, it seems that even then, lawyers were already into using synonyms, even something following a sentence with another having mostly the same meaning. But they didn't need more than one page for the contract, which was probably fortunate, given that the cost of one sheet of parchment was significantly higher than that of one A4 sheet, and astronomically higher than that of one mouse-click.

    Perhaps that's the solution : make it so it actually costs the vendor a significant price to add line after line of legalese to a contract, so that the vendor has a strong incentive to be as concise as possible.

  7. says


    Thank you for the kind and considerate reply. I was aware you were being a bit facetious; I was also being a bit facetious in my questions as well, and I sincerely apologize that I did a poor job of making that clear in my post.

    I will say, though, that these are the kinds of questions I really enjoy discussing, especially with people who are smarter and better versed in the law than I am. I was actually unaware of the doctrine of mistake of fact, and plan to research that some more when I have time.

  8. TomH says

    Re: Synonyms in legal writing

    To be pedantic – The use of synonyms arises from post invasion law in England, where the lawyers were writing to satisfy the Anglo Saxon (Germanic) and French (Latin) courts. Now it is just a bad habit, or the words just mean similar but different things. (eg. to cease means to stop and to desist means to stay stopped)

  9. jb says

    The interesting thing about this contract is not the soul bit, but that the signer grants the company the right to light 6 foot high letters on fire within visual range of the signer.

  10. says

    TomH : I don't doubt bilinguism played a part in "cease and desist" or "assault and battery" and such in anglophone law, but I was speaking about documents in latin, most of them from France.

    In which "lawyers" were fond of synonyms and repetitions, too, often to emphasize that some land or privilege was granted forever (hence many instances of things such as "for eternity and forever", etc.)

  11. Malcolm says

    That reminds me of what my mother always used to say about reading the fine print: "How do you know you're not signing away your immortal soul?"
    (In reply to Dwight Brown: it doesn't matter whether the sale of your soul is enforceable according to the law of the land. It's whether God and the devil think it is enforceable that matters.)