Movies, TV shows, music, books and all kinds of items can be purchased much more readily than a generation ago, turning what was once a trip to a shopping mall into a few taps on a smartphone.
But before they’re able to listen to that new song, consumers might be compelled to agree to the software license’s “terms and conditions” – typically, a dense thicket of technical and legal jargon that stretches upward of 30 pages or more if printed. And in clicking the “I agree” button to make it all go away, consumers may believe they have entered into a contract with a company that contains numerous terms. According to a new paper by a University of Illinois legal scholar, what consumers have really entered into is a “pseudo-contract” with a company – a unilaterally created, legally dubious one-sided system of private obligations that’s arrived at without any actual haggling over terms and conditions or consumer understanding or agreement.
Robin B. Kar, a University of Illinois professor of law and of philosophy, and co-author Margaret Jane Radin, a professor of law at the University of Michigan and the University of Toronto, argue that the boilerplate text that nobody reads has very tenuous legal footing.
“Everyone assumes that it’s all part of a contract because you’re clicking ‘I agree,’ after receiving copious text, but the simple version is that it isn’t,” said Kar, an internationally recognized scholar of contract law, philosophy of law, and moral and legal philosophy. “Contract formation is a cooperative process, whereby parties use language to reach an actual agreement, and when one side is conveying a mountain of terms that no one can read during the process of contract formation, they simply aren’t following the cooperative norms needed to produce an actual contractual agreement.”
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