Terms and conditions Online

blahblahbla

When you click on this tick boxes online that say you accept the terms and conditions or terms of service. Is this essentially a legally binding contract?
If so how is it enforced if say you were drunk when you signed it.?
Also if you don't understand them, is the entity who is providing you with them supposed to be able to explain them?

I'm not looking at getting out of anything , I'm just curious of how this is enforced.It seems unrealistic given some of these ToCs are very convoluted and seem to be written in a way that make them hard to understand for someone not used to reading documents like that..

Little CuChulainn

The form part of a contract of sale. If you don't like them or can't understand them you have the option of not purchasing.

MarkAnthony

blahblahbla wrote: »

When you click on this tick boxes online that say you accept the terms and conditions or terms of service. Is this essentially a legally binding contract?
If so how is it enforced if say you were drunk when you signed it.?
Also if you don't understand them, is the entity who is providing you with them supposed to be able to explain them?

I'm not looking at getting out of anything , I'm just curious of how this is enforced.It seems unrealistic given some of these ToCs are very convoluted and seem to be written in a way that make them hard to understand for someone not used to reading documents like that..

This is why we have consumer protection legislation.

Yes it would be a legally binding contract subject to the above. On drunkenness I'm sure there are some articles on the subject.

There is also case law surround certain other provisions such as exclusion clauses or penalty clauses.

blahblahbla

Does that mean it is a contract?
In school I remember there was a couple of criteria you needed to pass before it can qualify as a legally binding agreement. You have to be of sound mind, over 18 , need legal representation ect.
Does this mean that if you dont fall under one of these the ToCs are invalid?
Also would the contract fall under Irish law or the law of another country if the company was not from Ireland?

MarkAnthony

blahblahbla wrote: »

Does that mean it is a contract?
In school I remember there was a couple of criteria you needed to pass before it can qualify as a legally binding agreement. You have to be of sound mind, over 18 , need legal representation ect.
Does this mean that if you dont fall under one of these the ToCs are invalid?
Also would the contract fall under Irish law or the law of another country if the company was not from Ireland?

You enter into dozens of contracts everyday usually. Everytime you buy something in a shop you're entering into a contract. A legally binding agreement is not necessarily a contract, but I suppose usually is.

None of those criteria apply in all circumstances, legal representation almost never applies. Even where they do the contract will usually still exist it just may be unenforceable or voidable.

One clause may cause a contract to fall in it's entirety but it's very unlikely.

Most of these rules are harmonised across the EU. There may be provisions on what who has jurisdiction, that may or may not be invalid in of itself.

blahblahbla

MarkAnthony wrote: »

None of those criteria apply in all circumstances, legal representation almost never applies. Even where they do the contract will usually still exist it just may be unenforceable or voidable.

One clause may cause a contract to fall in it's entirety but it's very unlikely.

Most of these rules are harmonised across the EU. There may be provisions on what who has jurisdiction, that may or may not be invalid in of itself.

Thats interesting, I guess in school we are only given a rough one dimensional view. So for example if Facebook said, we are entitled charge you for every post you make and you sign up when you are 10.Then a few years later they send you a bill, you can say I was too young to enter a contract,Therefore I dont owe Facebook any money?

Whats the difference if the contract exists but not enforceable or voidable?
Has anyone ever challenged ToCs in Ireland or Europe, it seems like an area of contract law that just came into existence with the advent of online commerce and not fully treated as something unique?

MarkAnthony

blahblahbla wrote: »

Thats interesting, I guess in school we are only given a rough one dimensional view. So for example if Facebook said, we are entitled charge you for every post you make and you sign up when you are 10.Then a few years later they send you a bill, you can say I was too young to enter a contract,Therefore I dont owe Facebook any money?

You could argue that, they may have other recourse though tort for example.

However lets say you enter into a contract for a necessary, say food, being a minor does not void the contract.

blahblahbla wrote: »

Whats the difference if the contract exists but not enforceable or voidable?

Rather than explain that poorly; have a google.

blahblahbla wrote: »

Has anyone ever challenged ToCs in Ireland or Europe, it seems like an area of contract law that just came into existence with the advent of online commerce and not fully treated as something unique?

Been on the go for many years with many hundreds of thousands of challenges. Although online commerce has it's own legislation there is nothing to stop the basic rules of contract applying. Every first year law student does cases involving telex, phones, mail and telegraph. How did a sugar merchant in England make a contract with someone in Trinidad in the 16th century?

Also have a google at the idea of the European Free Market and the legislative framework there in. For example lets say there is an EU regulation stating that:

"All airlines must provide refreshments if a flight is delayed for more than 2 hours".

Claus is a vegetarian and sues RyanAir for only providing ham sandwiches. In the German Court he is successful. Will Aoife be successful in Ireland, while it's not as simple to say yes definitely because of Claus' case it's very close.

FreudianSlippers

Ryanair has been enforcing that T&Cs for a while now and winning recently. http://www.irishtimes.com/business/transport-and-tourism/ryanair-wins-second-case-against-screenscraper-site-1.2067116

Courts seem happy to agree that clickwrap = contract.

goz83

Terms and Conditions in many cases help to protect businesses from tyre kickers to scammers. They are necessary. What I disagree with, is when they are written in a way as to purposely confuse, or mislead consumers.

FreudianSlippers

goz83 wrote: »

Terms and Conditions in many cases help to protect businesses from tyre kickers to scammers. They are necessary. What I disagree with, is when they are written in a way as to purposely confuse, or mislead consumers.

That is what contra proferentem rule is for though.

Uno my Uno.

FreudianSlippers wrote: »

Ryanair has been enforcing that T&Cs for a while now and winning recently. http://www.irishtimes.com/business/transport-and-tourism/ryanair-wins-second-case-against-screenscraper-site-1.2067116

Courts seem happy to agree that clickwrap = contract.

I'd agree with this , it seems to be the standard way parties are incorporating Ts&Cs to online transactions/contracts. I imagine those decisions are partly inspired by the Courts' desire to provide certainty in contracts. The postal rule is pretty arbitrary but provides certainty, similarly clickwrap might cause harshness in some cases but also provides certainty.

As regard to being drunk or not understanding the terms, it is a general concept that someone should not be allowed profit from their own default. that is to say, if I enter a contact I shouldn't be then allowed get out of it because of something I caused. eg If i was drunk when I entered the contract online I shouldn't be allowed out of it just because I was drunk, Those were my actions and nothing to do with the other side who couldn't have had knowledge of them.

JimsAlterEgo

Isn't there a concept that T&Cs need to be fair?

FreudianSlippers

There are Regulations which deal with unfair terms in consumer contracts. The list is not exhaustive, but the major ones are:

1) Terms excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;
2) Terms that inappropriately exclude or limit the legal rights of the consumer;
3) Terms that give the supplier the unilateral right to change the contract (see the UPC thread);
4) Terms making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone.

But generally "fair"? Not really.

JimsAlterEgo

FreudianSlippers wrote: »

There are Regulations which deal with unfair terms in consumer contracts. The list is not exhaustive, but the major ones are:

1) Terms excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;
2) Terms that inappropriately exclude or limit the legal rights of the consumer;
3) Terms that give the supplier the unilateral right to change the contract (see the UPC thread);
4) Terms making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone.

But generally "fair"? Not really.

this is what I was thinking of

http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_rights/unfair_terms.html

Information

Consumers have legislative protection from unfair terms in consumer contracts. An unfair term in a standard consumer contract is a term that is significantly weighted against the consumer. In other words, the contract contains a statement that puts the consumer at a disadvantage. A supplier of goods or services can have an advantage over the consumer by including such an unfair term in a contract. Under The European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 however, consumer contracts are open to a test of fairness. Any term found by a Court to be unfair, is ineffective.


Rules

What are terms in a consumer contract?

A contract is an agreement between two or more people that is enforceable by law. When you buy goods or services you enter into a contract with the supplier of goods and services. This is called a consumer contract. Specifically a consumer is a person who is buying a service or a product from someone whose normal business it is to sell that product or service.

Contracts may be written or oral. It is easier to know precisely what the terms are in a written contract but an oral contract is also enforceable in law. Consumer contracts may differ and there are no hard and fast rules governing what terms should be in a consumer contract.

Contracts are made up of terms and there are different types of terms in consumer contracts. Implied terms are not mentioned in a written or oral consumer contract but exist all the same. An example of an implied term might be that the product or service will last for a reasonable length of time taking the cost of the item or service into account. Mandatory terms are terms that by law have to be included in contracts – these are not common in consumer contracts. Core terms are terms that set out the main conditions of a contract. In a consumer contract, these core terms might include the price of the product or service. Neither core terms nor mandatory terms are covered by the EU Unfair Terms in Consumer Contracts Regulation 1995.

These regulations take into account the circumstances surrounding the conclusion of the contract. For example, whether the product or service was sold to the consumer in a fair and equitable manner.

The regulations do not however, apply to any term that has been individually negotiated in a contract between a consumer and a supplier of goods and services. They also do not cover contracts between individuals selling products or services outside the course of their normal business or between one trader and another. Other contracts relating to employment, succession rights, family law or the formation of companies or partnerships are not covered by the regulations.

What is meant by an unfair term?

As explained above, an unfair term in a consumer contract is a term that can cause a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. There are three main categories that unfair terms may fall into.
•Terms that give the supplier of goods or services the right to change the terms of the contract.
•Terms that limit the liability of the supplier of goods and services. For example no liability for death or personal injury arising out of an act or an omission by the supplier of goods or services.
•Terms that put an unfair burden on the consumer. For example a term states that a deposit will be kept by the supplier of goods or services if the consumer cancels the contract but does not include a term saying that the supplier of goods or services will pay compensation if it does not fulfil its commitments.

This list is not exhaustive. Terms that fit into one of the above categories may be fair and equally a term may be deemed to be unfair which does not fit into one of the above categories.

Unfair terms violate the principle of good faith. If you enter a contract in good faith it means that your intentions are honest. The principle of good faith could be violated by, for example, inserting a term in the small print of the contract agreement where the consumer cannot see it easily.

In the case of written contracts, all terms must be written in plain, understandable language. If there is a doubt about the meaning of a term, the meaning that is most favourable to the consumer will prevail. If a term in the contract is found to be unfair, the remainder of the contract may still be legally binding on the consumer and the supplier of goods or services. This means that while one term or condition of the contract may be illegal, the remainder of the contract remains in force.

FreudianSlippers

JimsAlterEgo wrote: »

this is what I was thinking of

http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_rights/unfair_terms.html

My link is to the SI that implements the 1995 Regulations in Ireland; so they're one in the same rules. It doesn't mean the contract has to be "fair", it simply means that unfair terms contained therein may be invalid.

blahblahbla

FreudianSlippers wrote: »

There are

) Terms excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier;
2) Terms that inappropriately exclude or limit the legal rights of the consumer;

Interesting, this was what I came across while signing up for an online service before
(it was in caps)
. Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

Is this an example of a breach of what you stated above?

MarkAnthony

blahblahbla wrote: »

Interesting, this was what I came across while signing up for an online service before
(it was in caps)
. Waiver of Jury Trial
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

Is this an example of a breach of what you stated above?

They wouldn't be a breach per se but they may be an unenforceable term. There are very few civil jury trials in Ireland anyway. That looks like a US provision.

Bear in mind a contract may bar the courts altogether in the first instance by insisting on arbitration. I doubt many consumer contracts do but I mention it as an illustration.

NoQuarter

FreudianSlippers wrote: »

Ryanair has been enforcing that T&Cs for a while now and winning recently. http://www.irishtimes.com/business/transport-and-tourism/ryanair-wins-second-case-against-screenscraper-site-1.2067116

Courts seem happy to agree that clickwrap = contract.

Memories of Laffoy and a certain UK based screenscraping company coming back?