> And the idea that a contract can be broken, to the detriment of one side, due to the actions of a third party that neither has control over, and that the contract isn't primarily about, seems highly suspect.
Isn't this actually an incredibly important part of every contract? Surely I would want any contract I'm part of to be clear about what happens if one of the relevant parties gets injured, or is unable to fulfill their obligations due to any reason beyond their control.
> I'm not a lawyer, but I thought most contracts had clauses that said that if one part of this contract is found to be invalid, the rest of the contract still holds.
Yes, one sees that. Unfortunately, a contract that includes such statements, designed to avoid the consequences of unconscionable terms, are themselves unconscionable.
My point is that you can't put language into a contract that contradicts contract law, and the idea of invalidating a contract based on unconscionable terms, terms no rational person would agree to, is part of contract law.
> So don't play their game. Don't presume the contract is valid, or legal, especially when the balance of power is unequal.
I don’t presume this at all, but saying ‘this clause is unenforceable because x, y and z’ is much more work than saying, ‘look, your own contract says you failed to uphold your end of the deal’.
Mostly because you likely have to search through tons of laws to find x, y and z. As convoluted as contract language is, a whole legal handbook is much more so.
> After you sign something, it's not important if it's reasonable or not: you have to uphold it.
That's frankly a ridiculous idea that clearly leads to injustice. Contracts are often between people who are not equals, where one party has less ability to negotiate or walk away. If the weaker party does not have extra protections outside of the contracting process, the stronger party could use its power to abuse them.
I wish those were called something else. They aren't actually contracts in the sense most people understand the term. And, being code (and immutable, if I understand it), I don't find their existence reassuring from a safety point of view. But that's neither here nor there.
> No need to tie up the US legal system
As (highly) imperfect as it is, the legal system does, at least, provide mechanisms to correct injustices.
> very few people enter a contract contemplating that they will be the one breaching it, so they are willing to agree to a system for efficiently adjudicating conflicts.
For broad definitions of 'people', I don't think this is true. I am utterly certain that businesses enter into these contracts secure in the knowledge that it is much more likely that wrongs will be alleged against them under the contract than that they will need to allege wrongs against the contractee, and that businesses feel that arbitration is likely to favour them. If businesses didn't believe at least the latter, or even if there were just divided opinions, then arbitration clauses would not be included in every. Damn. Contract.
IANAL either, but those sound like punitive damages, which are unenforceable. The court could accept the assessment in the contract, but if it's blatantly unreasonable, they are supposed to pick a value that more accurately matches the damage incurred due to the breach.
Not that I would want to be in a situation where you have to depend on that...
Re: this, I'm still fascinated how a contract that both parties are not aware of the existence of is even allowed to be treated as a contract in the first place. In many cases like local software, when you accept the T&C, the other party has no idea this happened in the first place, so they can't even claim to have a contract with you. That you can have a contract with "informed" consent from a party from a party (and interestingly this is regarding the other party, not you the consumer) that has no information about the contract's existence just blows my mind.
>If a person was asking for the crazy things I see in contracts, yes, I'd agree with you since it shows intent.
Usually somebody did. And, if the person who hands you the contract acts surprised about its contents that isn't good either. It demonstrates a dangerous lack of control.
>If you treat companies like that, you miss out on opportunities since the crazy stuff in the contract is negotiable and the guy you're negotiating with didn't write the contract and won't mind you crossing out the bad parts that keep both of you from a mutually beneficial deal.
This is exactly what I used to think when I encountered a guy who apparently hadn't read his contract, acted surprised about its contents and he was happy to change it.
He later ended up not paying me as he ran out of money without noticing. Apparently he not only neglected to read his contracts, he neglected to read his bank statements.
So far he's the only person who acted surprised about the contents of his contract.
>The lawyer drafting the contract is trying to protect the company.
Egregious fuck-you clauses can actually hurt the company's standing in court since a judge may decide the rest of the contract shouldn't be enforceable (at least under UK law).
Either way, unless the client is exceptional in all other respects or you really need them it's usually worth walking away.
> Yes, of course I have agreed to contracts without that level of investigation.
OK.
So, suppose in one of those contracts there was a clause that you weren't aware of that said that you would be required to hand over all or any of your property to the other party on request.
Do you think that that should be enforceable? If you think it shouldn't, why not? Especially so considering that you were free to not enter into that contract, therefore you, arguably, would not be forced to hand over your property when this clause is being enforced.
> It is their right to break the contract because they don't want to deal with you, but then they have to pay a fine because they were engaged in a contract with you and they broke it.
> You have a right to my private contract with someone? Because that’s what a settlement is. What you’re saying is that all contracts need to be made public?
I hear what you are saying, but a contract is only private while both parties agree that the other is not in breach. The minute you want to enforce a contract its contents are made fully public.
TBH, I don't think anyone who got a life-changing amount of money from a settlement would want to jeopardise that by breaching the NDA and forcing the other party to sue, making the contract open to public inspection.
> Well if that's your definition, I'd go so far as to say 'well-written' contracts don't exist.
Do you believe it's not possible to draw up clear contracts with clear meanings? Do you believe that if you just take any contract and pay a lawyer some money, they can argue whatever? In that case, what's the purpose of drawing up a contract at all?
> Those remedies are against the parties breaching the contract.
Yes, remedies in the law are invariably against the party breaking the law, not the people complying with the law. What would be the point of sanctions for not breaking the law?
> while I’m sure there are some specific extra laws that make breach of certain types of contracts a misdemeanour or felony. Generally speaking in most jurisdictions around the world in fact, breach of contract is a civil law matter between the parties of the contract
So, what I just said that breach of contract is a violation of the law for which there are sanctions available, but not in and of itself criminal. That was a…very argumentative agreement.
> A quote is not a necessary element to formation of a contract.
True, but manifest intent to form a binding contract on the part of both parties is.
> If you’re holding a yard sale, and I point at some knickknack and ask “how much for that?”, and you say “it’s a dollar” and I say “that’s a deal”, that’s a contract.
Probably not; contract law would probably view that as a negotiation where only you manifested an intent to form a binding contract, so unless there was some positive acknowledgement of your “that’s a deal”, no contract would be formed.
I mean, I’m pretty sure that a near identical scenario to that was the one the of textbook demonstrations of the absence of that contract element in my Contracts class.
> And if you say that's not your intention, then why don't you feel secure giving me more protection in the contract?
This is the crux of it for me. If you don’t intend to enforce a clause, you won’t argue about taking it out. If you say you don’t intend to enforce it, but you refuse to take it out, you’re being dishonest and we’re done here.
>No law can prevent a thing, no written agreement can prevent cheating. Law can only set out that such cheating might be illegal in the sense that it can be argued in court that penalties should apply.
This is asinine stuff. Contract law is one of the oldest parts of the legal system and contracts are protected. Violating contract terms leads to a discussion of damages. It's not about illegal contracts, it's about liability and damages.
No, you're right. Someone like, say, you, should get to decide, preemptively, what a contract between two parties should or should not be allowed to include. Because you know better than the parties actually doing the negotiation, right? Why should we trust that the relevant parties know what's in their own interests?
> So why we keep allowing insurance companies to make these exclusions?
In general, we don't have to "allow" contracts between two private parties to happen. We can "not allow" (i.e., outlaw) certain contracts, but an insurance company and a private party can (and should!) set up the contract between them however they please. Especially in a case like this, where the contract is huge, and probably had teams of lawyers from both sides going over all its details.
Isn't this actually an incredibly important part of every contract? Surely I would want any contract I'm part of to be clear about what happens if one of the relevant parties gets injured, or is unable to fulfill their obligations due to any reason beyond their control.
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