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 gamesation.co.uk 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."
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
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016