[otterley]

That’s not an “I didn’t read it” defense. That’s a “term is this contract is unconscionable” defense. They’re not the same thing. I was speaking strictly of the former.

Also, striking an unconscionable term typically does not void the whole contract. Just the term in question.

[bryanrasmussen]

As a general rule I believe many online terms of use, eulas and similar online contracts are examples of procedural unconscionability, in that length is often too long that one can be expected to read it in the day to day action of "surfing the web", I believe this is also the opinion of the EU and many of its member states, hence the limitations found on enforcement of such contracts.

Aside from that many of these contract have terms that might be considered substantive unconscionability - for example if terms state that what you post can be used by the company that owns the service for marketing of the company or the service I feel this would not make it through most legal systems that I feel before the attempt are not inherently corrupt.

[otterley]

I would personally be shocked if the EU voids click-wrap agreements for unconscionableness based on the process alone. I’m not super familiar with EU law; is that what it truly says? I rather doubt it because I do business in the EU and have been asked to agree to terms as a condition of making purchases online there.

[simonra]

Online retailers in the nordics occasionally try to post terms and conditions that contradict consumer protection laws, for instance retailers being on the hook for warrantying product(ion) defects for 5 years after purchases of products that ought to be durable, like electronics. The retailers win out on a substantial amount of the population not contesting it, but if you as a consumer go through the process the findings is basically always in your favor, despite there being agreements to something else. Telecommunications providers also have a long history of having their consumer invoices being voided for being unconscionable despite service agreements, especially in cases with children playing with devices (but otherwise also), going all the way back to the landline age.

[otterley]

Right. But those are substantively unconscionable terms, not about the agreement process itself.

[bryanrasmussen]

sorry I did not phrase that very well, when I said as a general rule I believe I meant that if put to the test it could be often won on length alone in conjunction with the activity being done, but almost always these contracts are substantively unconsionable and of course people contest that, because most people don't get angry and want to fight for no reason, they do it because it is violating their rights.

As an example I have an email account with site A. I go to site A and log in, they suddenly spring a large new contract for me to read, I cannot get through to do what I came to do, it will take me 5 minutes to read so I click OK because I am on my way to check my email with site A. Procedurally this is not reasonable behavior.

What would be reasonable?

"Hi, we are changing our terms of service, you can see it at this link and agree. If you don't have the time right now you can do it later, but in three days you will lose access to the service unless you agree to terms."

There are however lots of other laws in the EU which may in fact make this behavior substantively unconscionable anyway. I certainly believe there would also be substantive arguments to be made in this case.

[SiempreViernes]

The council directive on unfair terms in consumer contracts puts every pre-canned contract in scope, and unfair provisions on a contract are rule non-binding (if the contract can keep existing after the unfair bits are taken out).

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...

[otterley]

Right. But those are substantively unconscionable terms (“unfair provisions”), not about the agreement process itself.

[lukeschlather]

All of these cookie forms have the same set of toggles. At a high level all anyone is saying is that we should just declare any kind of tracking cookies unconscionable terms for this kind of dialog box. Caching, shopping carts, explicit log in, these are totally fine and you don't need a dialog. The tracking stuff is not that hard to define and it should just be declared unconscionable.

[victorbjorklund]

No, it is literally ”I didn’t read the contract”. Let me guess you don’t have a law degree in Swedish law and you are just making statements on every legal system in the whole world?

Just read avtalslagen paragraf 30. It says just that. And it is different from paragraf 36.

[otterley]

I read it. The law expressed therein appears to be consistent with typical contract law in the West, including the UK (from which US law is derived) and other European countries. I don't see any major differences. (Also, I'm not sure why you brought up paragraph 30 as that is about fraudulent inducement.)

See also https://svjt.se/svjt/1959/497 "En person borde sålunda bli bunden av ordalagen i det dokument han undertecknat utan att äga att ursäkta sig med att han icke läst igenom dokumentet."

[victorbjorklund]

No, I have a Swedish law degree and you have totally misunderstood article 30 if you claim it is about unjust contracts. You are mixing it up with art 36.

You are referring to a 60 year article and the sentence you highlighted is NOT his opinion on the old contract law (the contract law currently in effect is from 2020) but rather he is explaining the opinion on German law from another person.

Of course you as an American sees no difference between contract law in continental European law and common law.

[victorbjorklund]

This is what the Swedish Supreme Court said recently on the paragraph.

Enligt 30 § avtalslagen kan en rättshandling inte göras gällande om den, gentemot vilken en rättshandling företagits, framkallat rättshandlingen genom svikligt förledande eller bort inse att den som företog rättshandlingen blivit svikligen förledd av någon annan. Det finns en presumtion för att det svikliga förfarandet har framkallat rättshandlingen, om omständigheter som svikligen uppgetts eller förtigits kan antas vara av betydelse för rättshandlingen.

bad Google Translate:

According to Section 30 of the Contracts Act, a legal act cannot be enforced if the party against whom the legal act was performed caused the legal act by fraudulent misrepresentation or Should have realized that the party performing the legal act had been fraudulently misled by someone else. There is a presumption that the fraudulent misrepresentation has caused the legal act if circumstances that were fraudulently stated or omitted can be assumed to be of significance for the legal act.

[otterley]

> you have totally misunderstood article 30 if you claim it is about unjust contracts

Fraudulent inducement is not about unjust terms in contracts. The elements of fraudulent inducement in the US are:

  1. The other party falsely represented something to you regarding a material fact;
  2. They knew that it was false;
  3. They made the representation in order to induce you to rely on it;
  4. You did actually rely on it;
  5. You did not know that it was false; and
  6. You sustained damages as a result.

I imagine it's not significantly different in Sweden.

> According to Section 30 of the Contracts Act, a legal act cannot be enforced if the party against whom the legal act was performed caused the legal act by fraudulent misrepresentation.

OK. We have the same law. But I don't understand what this has to do with an "I didn't read the contract" defense. Since you possess a Swedish law degree, can you cite a single case wherein a party to a contract escaped their duty to perform merely because they didn't read the contract? Assume no fraud, clear language, no misrepresentation, no unconscionable/unlawful terms, both parties are competent to enter a contract, etc.

[Y_Y]

That's why billionaires don't buy their own dishwashers