Public outcry has killed an attempt turn clickthrough terms of service into legally binding obligations (for now)

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I read (and sometimes draft) these things for a living and even I struggle to understand some of what’s out there. What’s more, I cynically suspect that many times, even the lawyer who wrote the thing doesn’t fully understand every word. There’s a lot of boilerplate language that gets copy-and-pasted between agreements without the drafter necessarily spending the time to understand it or make sure it’s appropriate for the context. More than once when negotiating an IT contract I’ve asked the lawyer on the other side to explain part of the contract to me and received an answer that is wholly unsatisfying (or in some cases, just stunned silence).


No one, anywhere, does contracts well (federal, state, local, private, individual – doesn’t matter). It really is a pathetic, sad area of human endeavor that combines the worst in people: reading bland, boring text and bickering over money, due dates, liability, etc. (I say this with many years worth of experience.)

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I’m by no means a lawyer but when I look at the text of contracts (and especially the kind of “contracts” that I click through without reading), I wonder “what’s the point?”.

When a dispute over a contract ends up in court, is there usually anyone for whom it wouldn’t be better if the contract fit on a single sheet of paper? Obviously no normal person likes having to pay someone a lot of money simply to know on your behalf what you’ve agreed to. But surely even lawyers would have a less stultifying job if disputes were about substance rather than, like, whether “the landlord” is the same as “the Landlord”?

I’m slightly surprised that the same rot has spread into areas where there’s a lawyer on both sides of the table.

At the low end it’s apparently impolite to call the contracts of adhesion by such blunt and hurtful names; but there certainly isn’t any pressure against the tendency to just keep making them bigger and more opaque(and often adding alarming bits after the user’s eyes have glazed over).

You really have to go nuts to achieve a contract that will actually get nuked in court, not that most customers even have the resources to get it there(even if you hadn’t added the arbitration clause, which you probably have); and those sorts of contracts are very much offered on a take it or leave it basis; not as an invitation to negotiate.

Under those circumstances you might as well be overtly unhelpful; but in cases where the contract is expected to be read and potentially negotiated one would think that there would be more attention paid to having it not be nonsensical in sections.

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