

Retailer adds 'immortal soul' clause to sale conditions - RiderOfGiraffes
http://www.news.com.au/technology/gamers-risk-everlasting-limbo-as-retailer-adds-immortal-soul-clause-to-sale-conditions/story-e6frfro0-1225854448399

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mseebach
In Denmark, and to a slightly lesser extend Europe, consumer protection is so
strong that pretty much any language in the T&C is pointless, and thus there's
no point in reading it.

To a certain extend this is a good thing, and it's been instrumental in
persuading people that online shopping is safe. But I think it's a bad idea to
completely remove the right of consumers and businesses to enter into specific
agreements.

There was recently an EU ruling deciding that if you buy something online,
regret the purchase and return the goods (this is already the right of the
customer), you're entitled to a refund of the shipping charges also. Before
this ruling, the vendors only loss on a customer regretting his purchase was
handling (time) - this is comparable to the risks of running a physical store.
But now the vendor stand to loose actual money from shipping - and this is a
bad thing.

First, this loss has to be covered on the margins - the consumers end up
paying anyway, it's just less transparent.

Second, it pulls away the competitive advantage for vendors already offering
this service, and hands it to the ones that don't. I.e. benefiting those who
don't go the extra mile to service the customer on the dime of those who do.

Third, it could hamper e-business in areas where shipping is expensive.

But the most troubling thing about this is consumers getting used to vendors
having zero rights. I witnessed an exchange on the forum of a club recently,
where somebody was organizing a party with dinner. The cost was roughly €20
and should be transferred to the hosts bank account in advance. One
participant voiced concern that something might come up, and another (not the
host) casually stated that he should just pay, he could always reclaim the
money.

Even if this in a narrow legal sense might be so (and I'm not sure that's the
case, but IANAL) this is simply no way to treat volunteer hosts of a party,
that, at the time you've decided to not show up, already spend your money on
food for you.

Entering into an agreement is a two-way commitment, and even though we should
make it hard for shady vendors to defraud customers (including taking their
souls), teaching the customer that he has no commitments or obligations is a
bad idea in the long run.

~~~
drunkpotato
_But I think it's a bad idea to completely remove the right of consumers and
businesses to enter into specific agreements._

You're making a fallacy of the excluded middle. Very few would argue that we
should _completely_ remove the right to enter into a contract.

However, that's not what a purchase is. When you pay for an object, that is a
sale. When your business is oriented to selling a service to many individuals,
that is also, properly, a sale, and is _quite distinct from_ entering into a
contractual arrangement with another corporate entity.

When you pay for a service, the terms of that service should be easy to
understand and not require pages of legal boilerplate. A service oriented to
consumers should have no expectation that the customer has a lawyer reading
the terms of that service. As such, the terms should be clear, explicit, and
most of all, short.

The solution to the horrendous way it's done in the US is not to point at
Europe and say "look, it's also horrendous there!" That is a silly,
thoughtless, contentless argument that far too many are using just
reflexively.

Edit: Removed "In other words" at the beginning of last paragraph.

~~~
mseebach
I'm Danish, so I'm not "there", I'm "here". I'm criticizing my own system from
within. The article I'm reacting to is from an Australian website referencing
a UK firm. What people do and don't do in the US doesn't seem to apply, and
certainly not for for calling me silly and thoughtless, thank you very much.

A purchase is the entering of a contract to exchange goods for money. The
terms of the contract are for most developed nations fixed and encoded in
culture and the law, so we don't think about it in our day-to-day lives. But
that doesn't change the fact that it is a contract. You appear to be American,
skim the TOC of Article 2 (Sales) of the Uniform Commercial Code if you don't
believe me. (<http://www.law.cornell.edu/ucc/2/>)

~~~
drunkpotato
The fallacy doesn't change based on your perspective. It's still an excluded
middle. It is silly and thoughtless to pretend that if one is against terms of
service on every service sale, that one is advocating no rights for businesses
to enter into contracts. If you don't wish to be silly and thoughtless, then
don't be.

The commercial code you point to is part of the framework of laws which form
the social contract in the U.S., not something one explicitly signs off on
every time they buy a good or service. Few people ever read such laws in
anything other than summarized form. (If your rejoinder is "well, you should",
which others have also pointlessly argued, don't bother, I refuse to entertain
such thoughtless trash.) In that case, it's a background framework for every
transaction, and shouldn't require supplementary pages of legalese on every
service purchase.

You've merely redefined contract away from its accepted common usage into a
legal nightmare that would drag commerce to a screeching halt. Yes, every
transaction between two entities is trivially a contract, do you have anything
more substantive to add?

~~~
mseebach
I stated explicitly, twice, that I think consumer protection is a good thing.
I don't know how many more precautions you want me to take.

> not something one explicitly signs off on every time they buy a good or
> service.

Yes they do. Really, ask a lawyer.

> Few people ever read such laws in anything other than summarized form.

They don't need to, because they generally match consumers expectations in a
given culture. Merchants and those engaging in B2B trade should however read
them.

> In that case, it's a background framework for every transaction, and
> shouldn't require supplementary pages of legalese on every service purchase.

Exactly. You seem to have this image of contracts as being reams of paper
wheeled around by paralegals. They are not just that. There are such things as
oral and implied contracts and they are just as binding as written ones (but
might be harder to enforce).

> You've merely redefined contract away from its accepted common usage into a
> legal nightmare that would drag commerce to a screeching halt

I don't know anyone for whom the accepted common usage of the word contract
isn't also the legal one. And in the legal definition of the word contract,
even buying a soda in a vending machine is entering into a contract. Never the
less, commerce seems to be doing OK.

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Deestan
I my opinion, retailers have had this clause for years, in the form: "We
reserve the right to change these terms at any time without notification. Your
continued use of PRODUCT constitutes your acceptance of the new terms."

------
flipbrad
they should watch out, though. Taking the piss in T&Cs is a) an overt
acknowledgement that they are aware that nobody reads them, and b) that they
don't take their T&Cs seriously. Since it is an essential part of contract
formation that the parties and an intent to create legal relations (ICLR -
hence why contracts between mates, family members etc are rarely found to be
valid), points a) and b) could be evidence of the company having no ICLR, and
all those terms and conditions - protecting their rights in a dispute - could
potentially be dumped!

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CWuestefeld
_A COMPUTER game retailer revealed that it legally owns the souls of thousands
of online shoppers_

To be pedantic, the retailer does not own the souls of the shoppers. It owns
_options_ on those souls. Until such time as the retailer exercises the
option, those souls still belong to their original owners.

~~~
flipbrad
I presume you could buy it from them. Now, who wants to help me start up a
soul market?

------
prs
Related to this: <http://www.pcpitstop.com/spycheck/eula.asp>

Summary: "Software company hiddes a message in their End-user license
agreement (EULA) that promises a prize to anyone who actually reads it. Only
after 3000 downloads the prize was finally claimed."

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jacquesm
Excellent point about why terms and conditions agreed to online are not as a
rule legally enforceable.

You may be able to withhold service from people violating your T&C but you
will not be able to go much further than that.

More reading on this:

[http://www.wilmerhale.com/publications/whPubsDetail.aspx?id=...](http://www.wilmerhale.com/publications/whPubsDetail.aspx?id=c82e4a36-04ea-40d6-89cf-
af46e0dc9ea7)

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drinian
Mozy used to include "DO NOT TAUNT HAPPY FUN BALL" in their T&C...

~~~
dhimes
I seem to recall that from a SNL skit.

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DanielStraight
Sure, people don't read terms and conditions, but I have to ask, do retailers
care? Usually terms and conditions are tucked into a quiet corner so no one
will ever find them. They're intentionally written in an almost unreadable
style, even though it's not necessary. Some sites don't even have them,
despite dealing with tons of user-submitted content. Stack Overflow has been
claiming to license user-submitted content under cc-wiki since its inception
_without ever asking users for this permission_. Stack Overflow cannot even
legally _display_ content from users without permission, yet they presume to
license it out to third parties and even provide data dumps of it. People
don't read terms and conditions because companies don't care. Stack Overflow
has grown into one of the most popular sites on the web without ever settling
the most fundamental legal issue related to the site. I've even emailed Stack
Overflow about this. Their response can best be summed up as "Huh?" Companies
only provide terms and conditions to cover their asses. They don't care what's
in there any more than customers do. If they don't think their asses need
covered, they skip the terms and conditions altogether.

~~~
lkijuhyghjm
There is a big tag at the bottom of each page saying you submit it under cc-
wiki. This is a good thing, it's better than you having to read through 100s
of pages of their own license to discover that they reserve the rights to put
in a pay wall later.

~~~
DanielStraight
This is exactly Stack Overflow's (mis)understanding. The statement on the
bottom of the page is that user-submitted content _is licensed_ under cc-wiki.
That they are granting you a license to use it under cc-wiki. The statement is
_not_ that you will license your content to Stack Overflow under cc-wiki. I
can easily say, "The entire content of Hacker News is in the public domain."
Without asking for permission though, this statement is meaningless. Same with
Stack Overflow.

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maarek
Am I the only one bugged by the incorrect use of "year 2010 Anno Domini"? Anno
Domini means Year of Our Lord, so the proper usage is 'AD 2010', as in "The
Year of Our Lord 2010".

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jheriko
Hopefully someone important will pay attention and do away with the sillyness
of user agreements.

I don't have to sign one when I buy my food, electronics or whatever...

~~~
flipbrad
generally, you don't have to sign anything to form valid contracts. You're
agreeing to stuff just by buying the food - have a look for T&Cs posted in the
shop, at the till, etc

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Mc_Big_G
This is hilarious. I had this idea years ago, but never had the opportunity to
implement it. It's good to see a company with a sense of humor who realizes
that no one reads these things.

