Contract expert Simon Legree explains to Uncle Tom the provisions of his Terms and Conditions and E-Sign Disclosure Notice.
“I have read and accept the Terms and Conditions and E-Sign Disclosure Notice,” say the words beside the little check box. And you check the box and go on, because without checking the box, you cannot go on—you cannot order your consumer goods, or pay your bill, or live your life on the Internet.
But you have not read the Terms and Conditions and E-Sign Disclosure Notice. You did not even click on the link to the Terms and Conditions and E-Sign Disclosure Notice. You lied. In fact, since this is presented as a legal document, you committed perjury.
Why did you not read the Terms and Conditions and E-Sign Disclosure Notice? Because they were, in this case, 6,573 words long. That is quite an ordinary length for Terms and Conditions.
How does that compare to things you would willingly read?
In the New York Times, a newspaper renowned for its copy-heavy greyness, the average article is 1200 words. Assuming you read them at the same speed, you could read these Terms and Conditions in the amount of time it would take you to read five and a half New York Times articles.
But you could not read them at the same speed, because the Terms and Conditions are so dull that your brain will shut down in self-defense about a thousand words into them. A New York Times feature about allegations of corruption in the Nepalese Ministry of Agriculture is the soul of entertainment by comparison.
Yet you may be expected to swear that you have read documents like this several times a day. You have probably sworn, over the last month, that you have read hundreds of thousands of words of legal jargon that would have made no sense to you even if you had opened the page.
What can be done about this? Years ago, Dr. Boli would have said that no court would take such a supposed agreement seriously. There can be no agreement when knowing the terms of the agreement is quite literally impossible for any normal human being.
Courts, however, have adapted to the realities of life in the twenty-first century. It is now very likely that a court would agree that you should have known what the terms were, because they were right there for you to click on whenever you liked. You had the choice: you could decide to be a Luddite. But if you have decided to avail yourself of the privilege of existing in a world where an Internet connection is required for anything you desire to accomplish, then you will agree to the conditions, whatever they may be, and if you want your firstborn back you will do it without poking too deeply into the text of those conditions.
Thus we seem to have come to a point where a contract is no longer an agreement between parties, but rather a series of conditions imposed at will upon one person by another person or entity. The technical term for such a relation between parties is slavery, and Dr. Boli recalls that years ago there was some movement to amend the Constitution to prohibit it; but evidently the movement came to nothing.
The answer to our question of what can be done, therefore, is clear. When conditions are imposed unilaterally, one must manage to be the imposer rather than the imposed-upon. Dr. Boli, for example, has drawn up a list of terms and conditions that will be imposed upon any entity expecting to receive on-line payments from him. Curiously, in his version of the contract, the payments all flow toward him rather than away from him. But that is the price these businesses will have to pay for the convenience of doing business with him without having to push a cart up his street (which is, by the way, a very steep street). The alternative for them, of course, would be to admit that they committed perjury when they swore that they had read the terms and conditions thoroughly before continuing with the transaction, and the consequences of that admission might be worse than the consequences of Dr. Boli’s terms and conditions.