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Comment by Lawtonfogle | Hacker News Reader

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.

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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.

> 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.

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