Comment by belorn | Hacker News Reader

Comment by belorn | Hacker News Reader

Even those that are rated best, I doubt anyone can really explain the scope of the contract or each party's responsibilities without going into further details of my country's contract law, EU contract law, consumer protection laws, precedence and a few years of legal studies.

For example, when kolab says they should be, "To the extent permitted by the law", be excluded from any liability and be completely indemnify from all and everything, what does that actually mean? What does that mean for fit-for-purpose, or quality assurance, or to use a Swedish contract law: fairness in the contractual terms?

Here we got a Class A contract which I have no clue what, if anything, each party has agreed on. The only part I could reasonable figure as a contracted responsibility is that they will provide 30 days for customers to agree to the new terms if they decide to change prices. Also, customers are required by the contract to make private backups, which is quite an odd contractual responsibility to demand from customers. I doubt Kolab intended to be a contractual responsibility, but rather letting customers know whose responsibility it is to make backups if the customer wants that.

Most contracts aren't meant to be read be you, but by a lawyer. This is because it's almost impossible in normal language to accurately express the intention without opening tons of legal loopholes that can be abused in a court case. By the time you have written an exact specification that is 100% unambiguous, you have ended up with a contract that only lawyers can read.

To draw a comparison, let's take a random HTML tutorial on the Internet. Pretty easy to read and lets you understand the gist of HTML. But it's too vague and ambiguous if you want to write a browser engine. So you need the formal HTML spec, which only experts can read.

Writing a browser = court case. Formal HTML spec = contract.

I find being a programmer helps me with reading law. A lot of the time it's just a bunch of if this than that statements.

The problem is the function calls to the poorly documented API and some weird redefinitions of commons words. My go to example is affirming an appeal, which actually means rejecting an appeal, even though in normal language affirm and reject are basically opposites.

>A lot of the time it's just a bunch of if this than that statements.

Until you get to corporate and contract law, then it's just a bunch of if this then that statements with subtle unstated implications.

You could almost say that the entire point of corporate and contract law is for one party to disguise intent, forcing the other party to hire a lawyer to try to divine the intent.

Not all consumer terms-of-service are quite so devious, because sometimes the intent is simple minimisation of risk and legal ass covering to avoid opportunistic sue-age.

But in high powered negotiations you'd better believe the other party doesn't necessarily have your best interests at heart, and a naive reading of terms can do you a lot of damage.

Thanks for the insight.

Would you say that VC term sheets fall into this category?

Often yes. You need someone with experience and insight to go through them and point out what the terms really mean.

The problem is that we allow for consent to a contract to be valid. There are people who cannot afford lawyers for all the contracts they sign going about their daily lives. When I go to the doctor, when I buy insurance, when I get a phone... I am in effect being forced to agree to contracts that I cannot understand (doctor is a medical need, insurance is mandated under penalty of law, cellphone is a want, but it is really close to a need if you are trying to do a lot of things like getting a job).

Either uninformed consent counts or courts need to start saying these contracts were not given informed consent.

> cellphone is a want, but it is really close to a need

I'd actually argue it's a need in certain circumstances. At the very least, a phone in general is a need, since it's required for quite a bit of functionality government-wise, and for many people (i.e. homeless persons), a cellular phone is probably the most affordable option.

I personally don't even like the want/need distinction. To me, needs don't really exist, there are just a ranking of wants, with biological drives generally dominating the top of the list.

But it would often obscure my general point to add in this nitpick so I avoid saying at first and only add it as a follow up.

That's why some jurisdictions, e.g. certain civil law countries, limit the amount of stuff you can do in a contract in a business-to-consumer context. For example, in the Netherlands, all business-to-consumer contracts must follow the principle of "reasonableness & fairness". I can't give you an exact definition, but a "gut definition" is that if the judge looks at it and his gut feeling is "this is bullshit", then the contract is probably not legally binding. For example, as a consumer, you cannot agree that you have to sell your house to the other party for $10 if you fail to pay for the $30 service within 20 days. That would be an unreasonable claim.

Business-to-business transactions are however not subject to such protections. You can put anything you want in a contract (including unreasonable clauses) as long as it doesn't violate any laws.

The US is a common law country and as far as I know doesn't have this "reasonableness & fairness" principle for business-to-consumer contracts. In contrast to civil law countries, where judges tend to look at the spirit of the contract, common law country judges look at the letter of the contract. That's why old ladies can sue McDonalds when they burn their tongue on hot coffee. "Hey it's not written anywhere that I should be careful with hot coffee". And that's why US businesses have to put literally everything in contracts.

I agree with the spirit of what you're saying /grin but incidentally, you might want to read the details on the McDonalds coffee case: http://www.lectlaw.com/files/cur78.htm

yawn not this again.

http://realestatelawnh.com/index.php/injuries-to-children/5-...

> The US is a common law country

With the exception of Louisiana, which is a civil law state.

Technically, a contract requires a "meeting of minds." If you don't understand it, it is not a valid contract. Now, practically, this argument will only go so far with a judge. the presumption is that you read and understood it before you signed it. It can act as a defense, however, in cases where a person can be argued to be mentally "deficient" (mentally ill, low-IQ, a child, et cetera), and possibly also in cases where a contract is excessively or deliberately hard to understand.

I don't tend to worry too much about TOS as it is questionable whether I have truly entered into a contract in the first place. Most of the more egregious clauses would never be enforceable (you can't sign away your rights no matter what the contract says), and most companies are smart enough not to test it in a court of law. Finally, if it all comes to a head, the worst likely consequence is that I will simply have the service cut-off.

In common law, the idea of "reasonableness & fairness" is there, too. It is simply not codified because it doesn't need to be.

The problem is that for many areas of the contract, the average person does not understand it. Ask someone what arbitration is. Ask someone what acceleration of payments due is.

> Most contracts aren't meant to be read be you, but by a lawyer.

Then this pulls the rug out from under the oft-made claim, "It's in the ToS, so it's acceptable", doesn't it?[0]

In any case, in the US it's common in the medical field to be required to provide plain-English[1] summaries of any contract that are at a certain maximum reading level (oftentimes 4th grade). These summaries are not legally binding per se, but if they do not accurately reflect the contracts and policies they summarize, there can be serious consequences. The same is also often true for government programs or private contractors which receive local or federal government funds for providing services to the public.

I would love to see this catch on for privacy policies and terms of services, though it may take legal fiat for this to happen (as it did in the medical and public sectors). Hopefully we can address this problem as an industry before it comes to that.

[0] This claim is not valid for a number of reasons, one of which being that ToS may contain clauses that are not even legally enforceable, or which may violate other laws.

[1] And depending on where in the country you live, you may be required to provide these in more than one language.

Having glanced at the formal specs for IPsec, I am glad I never have to provide a signature to the fact that I fully understand it. RFC's and similar document has often ambiguous cases and errors to the point where experts in the field often reach different interpretation to the same text.

But contracts are intended to be understood and signed by ordinary people, on the assumption that one can understand it. Contract law itself, and in particular for civil law, the underlying theory is that a contract is a meeting of the mind where both parties understand what kind of responsibility and obligation there is. It seems only in recent time that this concept has been thrown under the table and contracts are written by lawyers, for the court, and people are just expected to sign it on blind faith that it all is fair.

tosdr goal seems to be fixing this, but I don't see how it ever could reach it. If the best contract in the market can't be understood, can't be read, then what can we do except ignoring the TOS and instead rate companies in how they behave regarding privacy, copyright, and QoS?

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