Comment by PaulAJ | Hacker News Reader

Comment by PaulAJ | Hacker News Reader

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In common law systems (including the UK and US) a contract is a "meeting of minds" (that is, you and I both agree on the terms). The writing merely makes clear what has been agreed, but if one side has been tricked then its still fraud. So if a salesman says "never mind the fine print, it just says you can cancel the contract at any time" when in fact the fine print locks you in to paying silly amounts for the next 5 years, then that is deception and hence fraud.

In this case its reasonable to suggest that by submitting his altered contract without drawing the banks attention (e.g. by putting at the front "here are my proposed terms") then not only does the bank not have to abide by them, but he was guilty of deception by trying to trick the bank into signing up to them.

Normally these rules are used to protect consumers from fine print proffered by suppliers. For instance https://en.wikipedia.org/wiki/Interfoto_Picture_Library_Ltd_... established that unusual or onerous terms cannot be hidden in a page of fine print and still be enforceable. But the rules apply the other way around too.

I'm a law student and I'm learning about this stuff now so I'm genuinely curious:

If Tinkov gave him the unlimited line of credit that he asked for, then didn't they by their conduct consent to his variation of the terms?

https://www.rt.com/business/tinkoff-bank-agarkov-credit-299/ <- says here they approved his unlimited line of credit

Perhaps what was sent was two things: a form with various parameters (name, birth date, amount of credit, etc), and the contract.

The bank then only noticed the changes in the form (since they have to input it to their systems anyway), and didn't notice the changes to the contract (since it's a contract of adhesion, and thus not supposed to be modified).

Good points. Sucks that there aren't more facts available.

Contract of adhesion: Wow very interesting point. If Tinkov's offer is construed as a unilateral offer, acceptance was only possible by performance (signing and returning the offer).

How are EULAs "meeting of minds"? You are supposed to read them after you're already paid money. And agree. You don't get any chance on meeting minds.

EULAs were inflicted on the rest of the world by US (which has common law system) and are of questionable legality in many countries.

You can return the software if you don't agree with the EULA.

Not to nitpick, but I remember an interesting case where the EULA was only available after opening the software... which made it ineligible for return at the retailer.

The retailer isn't the one you're making an agreement with, is it?

The retailer is the one that has your money...

So? I purchased my kitchen appliances from a retailer, but went to the manufacturer's warranty when I needed repairs, even though the retailer has my money.

You made an agreement with the retailer- software sales are final. You make the EULA with the publisher/manufacturer/etc- you seek compensation with them.

Actually, yes it is. Putting in extra terms you can't read until after committing yourself is not legal, so the EULA would not be enforceable.

In some cases where the software is bundled with the hardware you can only reject the EULA by returning the entire system.

I've never actually returned software. Would a big retailer (Best buy, say) accept the return of software whose seal has been broken.

A few years ago (>|decade?) music sales and video games were final at my local BB because they assumed you just burned yourself a copy.

> A few years ago (>|decade?) music sales and video games were final at my local BB because they assumed you just burned yourself a copy.

Most places I've shopped just say something to the effect of no returns on opened merchandise. No mention of why. I assume you're assuming what they're assuming.

I don't like returning, generally, unless the product really didn't meat expectations. However, I've never had a problem returning opened hard merchandise.

> Would a big retailer (Best buy, say) accept the return of software whose seal has been broken.

Probably not. However, if you read a EULA, you will notice most of them have a clause to the effect of "if you disagree with this EULA, you can return the software" and AFAIK its usually with the company with whom the EULA is and not with the retailer (eg if you buy Microsoft software, the EULA (and therefore the return if you disagree with the EULA) is with Microsoft and not Best Buy).

I don't want to! I simply want my transaction to be governed by same laws as with physical goods. Where they don't tell me what to do with my purchase.

It's really hard to return software, especially after it's been opened, as the retailer, who don't have anything to do with the EULA, are (rightfully) protecting themselves against people who install/copy the software then return the physical media for a refund.

Example from Windows 10's EULA:

  For software acquired from a retailer. Microsoft provides limited support
  services for properly licensed software as described at (aka.ms/mssupport).
  If you purchased the software from a retailer and are seeking a refund, and
  you cannot obtain one where you acquired the software, contact Microsoft for
  information about Microsoft’s refund policies. See (aka.ms/msoffices), or in
  North America, call (800) MICROSOFT or see (aka.ms/nareturns).

You answered your own question. EULAs are often not strictly enforceable in many countries. Hence the "to the fullest extent permissible by law" phrase that keeps popping up in them.

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