But it is complicated, no? Even if you click you agree, if the you thought you were agreeing to one thing but actually agreed to another because they buried the lede, “I didn’t read it” is a reasonable defense.
Why would you claim the false "I didn't read it" ahead of the true "I read it but understood it differently"? The latter allows for adding the fault shifting claim "because the other party wrote it deceptively", while "intentionally didn't read" makes it much harder to blame the other guy.
I think that means one of three things: the court system is broken, you are wrong, or I failed to be clear and you misunderstood me.
So, to be clear, if a company buries or obscures terms while making it seem like they have presented them, so you agree without reading the actual terms, you cannot defend yourself by explaining that situation?
One possibility you failed to enumerate was that you are wrong.
But anyway. What exactly do you mean by “buried or obscured”?
As I said above, if the parties cannot be said to have an agreement because the terms of the agreement itself are inscrutable, then that would probably result in no contract being formed, or the terms at issue interpreted in the light most favorable to the non-drafting party. Like if the terms were presented in so small a font that only someone with a microscope could have read them, or it was written cryptographically or is gibberish.
Basically you have to successfully argue that no reasonable person could have read and understood the agreement. You’re unlikely to prevail if you argue only that you, the individual, did not. (Unless the court also finds you are incapable of entering into any contract because you’re a minor, are non compos mentis, etc.)
A more concrete example may be useful to explain what I’m thinking.
A company has you click to agree to their TOS. They link a doc, which is of course quite long. That doc has a footnote which links to another doc. You do not read the secondary doc, and it is the contents of that doc that allows the company to sell you data/prevent you from suing them/harvest your organs/abduct your family/whatever.
My point is that “I did not read the document” should be a valid defense, such that if it is not I believe the law around this is wrong.
I suppose you can claim I am wrong to believe that, but it is accurate for me to state that I _do_ believe it, which is why I didn’t list me being wrong as one of the possibilities. Practically speaking, that is the first possibility I enumerated.
I should note that in my example, imagine neither doc is any more inscrutable than all the TOS we encounter in the wild, instead it is the construction (the fact it is a footnote link) that makes it easy to miss the additional doc.
Incorporations by reference are not unusual in contracts. A contract is unlikely to be voided merely because the contract has references and the counterparty didn't read them.
It really depends on the term they're trying to rely on. We have the "red hand rule" in England and Wales that means that unusual and onerous terms will not be incorporated unless it can be expressly shown they were fairly brought to the parties attention.