You might think that, and I might want to agree with you…
But human beings are not robots. Godels theorum has never been rigorously applied to human law… But I have a powerful suspicion that it applies here.
A casual re-wording (in comic book form) might be: “a rule can be fair, or a rule can apply to everyone equally, but no rule can ever do both at once”
The only reason any of this business can work at all, is trust. I click on the “agree” button because I don’t imagine the company is going to try to hurt me more than I can afford. This used to be common sense. The Wells Fargo thing killed my belief in common sense.
Do you think that eliminating the “severability” that makes adding reams of unvetted or known-shoddy material would be helpful; or cause too much collateral damage (either just because of the sharp increase in number of situations unexpectedly covered by no contractual relationship or because of some sneaky griefer application, or both)?
Aren’t ‘moral rights’ the ones that are impossible to waive or alienate in a substantial percentage of the jurisdictions that recognize them?
That’s the awful and probably illegal Tokyopop contract yeah. Like I said, don’t imagine that a counterparty is your ‘friend’ just because they give their contract in supposedly-clear plain english.
I’m not sure what you mean by ‘severability’. To me that would usually refer to a clause stating that if any part of the agreement is held to be unenforceable, the rest will still be fine.
Assuming that is what you mean, I can see no benefit whatsoever in having contracts be unenforceable merely because one clause is unenforceable.
I think there would be a lot more benefit if more clients understood that the contract they get someone to draft for them is the most vital document in their business and made sure that it is a document that:
a) they understand;
b) says what they want it to; and
c) their customers will understand.
As the flipside to that, lawyers need to point out to their clients that this is what needs to happen and not just blindly perpetuate incomprehensible precedents because “that’s the way it’s always been done”.
It does mean lawyers need to actually understand their precedents - what each clause is trying to do, why certain words are or are not used, etc.
It also means that you can’t just haul out the same precedent for every client and actually have to sit down and think about what you are doing when drafting an agreement and be able to explain it to your client. If it doesn’t work for them, you need to be able to change it so that it does.
That of course means it takes more time.
Which in turn means clients need to understand that drafting a contract takes time and costs money - real money rather than the peanuts most clients are prepared to pay for what they generally consider boring, unnecessary paperwork which someone (usually their bank or accountant) has told them they need.
It’s a vicious circle.
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