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  • I don't know any people who read TOS.
  • I don't know any people who know people who read TOS.
  • The only people I know who do read TOS are people on the internet, lawyers and the like.
  • Quote from news "PayPal agreement is longer than Hamlet".
  • TOS printed is often more than 20 pages / 36,275 words.
  • Even if most people were to read TOS, they wouldn't have the legal skills to make an educated decision.
  • For most it's just "whatever, click, yes, let me proceed".
  • For many/most people engaging a lawyer which they can held liable in case of misinformation to analyze the TOS for them is unaffordable as well. At least when using as much services as a usual person does.

Because of any or multiple above (or other) arguments...

Has ever been the argument made in court that it unreasonable to expect people read through the legal jargon and therefore render the TOS invalid in part or entirely?

  • "they wouldn't have the legal skills to make an educated decision [...] engaging a lawyer which they can held liable in case of misinformation". Regardless of any case law or statutes that may answer your inquiry, literacy in legal matters is an indispensable skill that people ought to develop instead of delegating everything to lawyers. You need not enroll in Law school and pay a $150K tuition for that. Holding attorneys liable for fraud/incompetence is much more expensive and less effective than making the effort to dispense with them. Many lawyers are inept and/or scam their own clients. – Iñaki Viggers Dec 25 '18 at 13:46
  • The short answer is no. Length alone is not disqualifying. A term unrelated to the subject matter of the contract would be unlikely to be upheld, however. – ohwilleke Dec 27 '18 at 0:47
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Providing the terms comply with consumer law in the relevant jurisdiction and they are presented through a click-wrap (i.e. you tick to acknowledge you agree to them), they are legally binding.

Note: common law renders unconscionable terms unenforceable and many consumer laws extend this to unfair terms.

-3

This goes back further than you might think. In the UK the key precedent is Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd in 1988.

From the Wikipedia article:

Interfoto delivered 47 photographic transparencies to Stiletto in a jiffy bag. Stiletto was planning to use them for a presentation, but in the event it did not. It never opened the transparency bag or read Interfoto's standard terms and conditions, which were inside the bag. Condition 2 said there was a holding fee of £5 per transparency for each day over fourteen days. After around a month, Interfoto sent a bill for £3,783.50.

The case went to appeal, where it was found that the holding fee was not part of the contract, not because Stiletto had never actually read the clause, but because Interfoto had not taken enough steps to bring this "unreasonable and extortionate clause" (in the appeal court's words) to Stiletto's attention.

The reasoning is that, under general common law principles, a contract is a "meeting of minds": it is formed when the two parties share a common view of what they have agreed is going to happen. The written form exists to memorialise exactly what was agreed, but the key step is that the two parties agree that "what this paper says is what we are going to do".

In Interfoto the principle was established that you can't just sneak unusual and onerous conditions into the fine print (as was literally the case in the Interfoto T&Cs), because its quite possible that the other party won't realise that they are there and therefore hasn't agreed to them. The T&Cs can be as long as you like, but only about normal and non-onerous conditions. Anything unusual or onerous has to be put at the top in bold print or something.

  • You may want to see the more recent click wrap precedents. – Pat W. Dec 25 '18 at 12:02
  • @PatW. With a click-wrap license, the person needs to do a positive action to assent to the conditions, and that's accepting a contract. If the clicker didn't bother reading all the text, that's not legally an excuse (although the concept of "contract of adhesion" does apply). In the Interfoto case, Stiletto never even saw the terms and conditions, and certainly did nothing to indicate acceptance. It would correspond more to the shrink-wrap license, in which a license is included in software packaging and use of the software is deemed acceptance. – David Thornley Dec 26 '18 at 21:21
  • @DavidThornley. Good point; I was thinking of something like ProCD. – Pat W. Dec 26 '18 at 21:46

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