[netcan]

One test could be proportionality. If the contract is in regards to a loan, major purchase or similar spending time and money understanding the implications of the policy is reasonable.

With Siri, I don't propose anything. I am simply stating the obvious. As an owner of an ipad, I have not really agreed to anything with Apple. They are pretending like we have an agreement, but we don't. If people really needed to read and understand the terms and conditions, 99% of people would not have updated the OS and Apple would have to change the way they do things.

Maybe they just need to make the information available and not get my consent. Maybe some feature require consent and so can't be pushed to my phone without an action on my part. I don't know what the alternative is.

I do know that this agreement between me and Apple is much more like an agreement between Apple and a 6 year old then the one between me an my employer. In the real world, it is not a contact. My click does not really denote agreement.

[askinakhan]

Don't you think that the reason your click doesn't denote agreement is because of how we have evolved and adjusted over time? The process of agreeing to terms and conditions has become subconscious. Although I agree that the contract between Apple and the buyer is essentially worthless, it has only become worthless because of how consumer habits have evolved therefore essentially making our clicks non-consensual.

I can only state the problem as it's not my place or area or expertise to state the solution but here's my opinion; buyer/seller contracts aren't standardised and therefore when people sign a contract they are not reading through it either because of:

1. Laziness 2. Evolution/Habit

Therefore we need to somehow make it so there isn't asymmetric information between the buyer/seller. This has to accomodate for the habits that have evolved through our evolution and somehow be more explicit to our newly formed habits. A shit suggestion would be: Standardise contracts for certain procedures e.g. getting a hotel room should have a standardised contract but then should have very short appendices that indicate any customisations that the hotel has made. As I said, it's a bad suggestion but i'm sure someone else can and should solve the problem.

Although one question we should ask ourselves... should we re-invent the wheel for outlying situations like this one? Doubt it.

Sorry for typing so much, got bored.

[tristor]

I think you've got a point there, but also it's important to not discount that for a contract to truly be valid that there are 5 key points that have to be in place. (Note, IANAL)

1) Intention to create legal relations 2) An offer 3) An acceptance 4) Consideration 5) Capacity to agree

The issue with "click-through" TCs and other forms of agreements is that they do not have consideration, they cannot ensure capacity to agree, and they're presented to someone who doesn't have the intent to form legal relations.

Unfortunately, in some cases "clickwrap" and "shrinkwrap" EULAs and TCs have been upheld by the court system (for reasons unbeknownst to me), in others they've been put down. Recently, regarding the Zappos user agreement the courts determined that their "browsewrap" TCs were not valid. http://blog.ericgoldman.org/archives/2012/10/how_zappos_user...

The biggest problem with these types of agreements isn't that the law needs to change, it's that the courts are upholding things and establishing a positive precedent for things which are clearly not legal even to a layman. This is similar to the situation with software patents, where patent law clearly does not cover software, copyright does, but companies are having them issued anyway and the courts are treating them as valid.

So, yeah, we're lazy and we've developed habits of just clicking "Okay" or "Agree" to get that message out of our way so we can move on with our life, but that's because any reasonable person would not even remotely consider needing a contract to utilize their phone beyond potentially signing an agreement with the carrier. Most of the TCs on software are trying to use contract to remove rights you actually have under copyright law or to subtly get you to agree to giving up information or other rights you may have as a consumer. In many ways, it's arguable that in common case circumstances such as installing an app or using a phone or computer, it shouldn't be legal for you to even give these rights up. A bigger piece is that simply many of the people utilizing phones are underage, so cannot legally consent to a contract.