4 Comments

  • Thank God for lawyers who read contracts. πŸ™‚

  • Never before, have so many, agreed to so much, so quickly. All hail the EULA.

  • Back in the olden days (2010) one had to sign it to see what’s in it.

  • Well, to some extent this is the fault of the explosion in tolerated claims of liability under contracts if every particular instance of dispute is not specifically and explicitly spelled out in precise detail. Can’t blame companies for that, and much of the exorbitant length of most contracts is due to such preemptive disclaimers and so forth.

    And yes, those numbers seem particularly egregious, but really, it seems to be that there is an extremely low threshold above which practically no one will actually read and understand. Most leases are fairly simple and short documents, and most tenants don’t negotiate about, or read and understand, those either (let along understand all their contingent rights and obligations as granted by legislation and case law but which are now specifically articulated in the lease).

    Or how many people really read or understand all the details of their mortgages or credit card agreements?

    Or to use a more basic example, how many people get married without having any notion of family law and what will happen to them in various adverse scenarios of decent rates of probability? Most of them. How ‘knowing and conscious’ is that?

    It seems to me that for most ordinary people that don’t rise to the level of ‘sophisticated commercial entities’ the notion of a ‘meeting of the minds’ or ‘informed consent’ on almost any contract is a pretty brazen legal fiction characterizing most contracts for most people for most of contemporary history, but which is of course indispensable to have any semblance of a typical contract enforcing system in a modern economy.

    The reality is that people feel confident enough to embrace a kind of ‘leap before you look and hope for the best’ attitude (especially with that marriage example), with a hazy impression that market forces and government regulation create a safe transactional environment on which they can free-ride without having to invest cognitive resources on costs associated with acquisition, review, and processing of legal information.

    They presume that, in general, they can pencil whip most end-used license agreements and multi-page boilerplate forms and, in the event anything goes awry, they will in general be treated fairly and reasonably and that their rights and risks will be proportional to some premium on the price, i.e. ‘you get what you pay for’. And I think, in theory at least, this may even be a reasonable presumption from an Efficient Markets Hypothesis point of view in generally free and competitive markets.

    So, if one goes through life with that presumption, that the prices one pays generally reflects consideration for generally reasonable and fair rights and obligations that the system will enforce in case of a contingency, then we have a case of ‘rational ignorance’ where it makes perfect sense to look at a small treatise of an iTunes contract and say, “Well, I’m sure they have their reasons, and I probably don’t have much to worry about,” and just digitally check that box on the agreement screen.